Earlier this year the Scottish Land Commission ("SLC") announced the publication of a new protocol aimed at charities that own land in Scotland. The Land Ownership by Charities Protocol ("Protocol") was published in the hope that it will be a useful governance tool for trustees of charities that own land, and will contribute to improving transparency and understanding of the role of charities as landowners.
In this blog we look into some of the detail of the Protocol and what it means.
Who does the Protocol apply to?
The Protocol applies to charities that own and manage land in Scotland. This would include for example, an English charity that owns and manages land in Scotland. It also applies to: charity trustees, land managers or charity employees who have significant control over land; community councils representing the area where the land and /or a related community sits; and relevant community constituted organisations with an open membership, can demonstrate community control and who represent a defined geographic area.
How does the Protocol impact charities?
The Protocol sets down expectations of charities that own land in Scotland, both in terms of how they operate and how they are run. It sets out twelve different conditions, including:
- Appointment of trustees
- Decision making about land / buildings owned by charities
- Selling / leasing charity land
- Charity governance arrangements
- Consideration for community priorities
Consideration should be given to appointing trustees that are local to where land owned by the charity is held. If a charity owns land in different places, then engagement with local decision-making procedures is encouraged.
Any such decision should follow the SLC's Protocol on 'Community Engagement in Decisions Relating to Land' where appropriate e.g. if doing so does not interfere with trustee duties or interfere with the charity's purposes.
The Protocol encourages trustees to consider what scope there is for different organisations to own / manage land or property, including residents local to the land in question.
Trustees are encouraged to consider whether their governance arrangements for dealing with charity land / property could be adapted to link with the Land Rights and Responsibilities Statement ("LRRS").
The Protocol encourages trustees to consider ways that they can work with local communities to meet their priorities, provided this is permitted by the charity's constitution.
Where did the Protocol come from?
The roots of the Protocol are to be found in the LRRS, a creature of the Land Reform (Scotland) Act 2016, which the Scottish Government is charged with preparing and publishing.
What does this mean for charities?
The Protocol was developed with OSCR. Its publication is a noteworthy development for charity trustees and is something that should be kept in mind when making decisions regarding charity land / property. It is also part of a wider movement to increase transparency around ownership of land in Scotland more generally, which trustees should be aware of. Many of the conditions contained within the Protocol would fall under the duties already owed by charity trustees, while others could readily be subsumed under the heading of 'good governance'. That said, the Protocol is important and is something that a charity owning land or buildings in Scotland will need to consider when making decisions, particularly with a view to not only ensuring compliance with trustee duties and charity law generally, but also to protect the charity's reputation and that of the sector more generally.
