The latest changes to Scottish Charity Law under the Charities (Regulation and Administration) (Scotland) Act 2023 will come into force from 31 August 2025. The new rules will extend the criteria for automatic disqualification and, for the first time, these criteria will also apply to those undertaking senior management functions.
To help charities understand how this legislative change may impact them, Rebecca Nally takes a deep dive into the rules:
1. Extended criteria for automatic disqualification
In addition to the existing criteria under the Charities and Trustee Investment (Scotland) Act 2005, there will be seven new criteria for automatic disqualification, namely:
i) Conviction of offences under bribery legislation;
ii) Conviction under proceeds of crime legislation;
iii) Conviction for perverting the course of justice;
iv) A conviction for terrorism or for association with a proscribed terrorist group;
v) Misconduct or negligence while acting as a public official;
vi) Disobedience of an order of court; and
vii) Sexual offences subjection to notification
2. Automatic disqualification
While previously, automatic disqualification provisions only applied to charity trustees, the rules (including the extended criteria above) will soon apply to employees and volunteers who carry out senior management functions, even if this is not reflected in their job title.
A senior management function under the 2023 Act is either:
1. A management function for which the person is not accountable to anyone or only directly accountable to the charity trustees (for example, the Chief Executive), or
2. A function which involves control over money for which the person is not accountable to anyone other than another person with senior management functions, but which does not relate to money in other respects (for example, the Chief Finance Officer).
It is the individual’s responsibility to check whether they meet any of the criteria for automatic disqualification. However, to protect the smooth running of the charity, trustees should ensure that all individuals with a senior management function are aware of these changes.
3. Waivers to automatic disqualification
It is an offence for anyone to act as a charity trustee or in a senior management position while disqualified and it is punishable by a fine, imprisonment, or both. However, OSCR does have the authority to waive an automatic disqualification upon application from the disqualified person.
The application for a waiver can be in relation to a particular charity, a type of charity, or charities in general. Before applying for the waiver, the individual must inform the charity of their disqualification so that the trustees can make an informed decision on whether to support the application.
OSCR will then make its decision on the merits of the application and based on what is in the best interests of the charity/charities. OSCR will also check whether the waiver is likely to damage public trust and confidence in the charity/charities.
4. Practical steps for Charities
Given the above changes, knowing your current and prospective trustees well will become even more important. The Record of Removed Persons can be used as a starting point to check for individuals who have been removed from serving as charity trustees by the Court of Session. However, it should be noted that this is an unusual and extreme step for the Court to take and as such, Charities should use or develop their own robust systems of diligence when it comes to recruitment, including referring to OSCR’s guidance.
Steps to take will include more robust background checks when choosing new trustees and assessment as to what roles include senior management functions that would put the individuals in the remit of the automatic disqualification rules. Reviewing role and job descriptions is strongly recommended.
If any trustees or individuals will become disqualified under the new rules, they must cease to act in their position, unless they have been granted a waiver. Trustees must resign formally and record their decision in writing, while for those undertaking senior management functions, it will be necessary for both the charity and the individual to seek legal advice, particularly regarding how the disqualification will impact their employment rights.
Conclusion
Charities should now prioritise assessing which roles fall under the new disqualification rules and ensure robust processes are in place for recruitment, oversight, and compliance. Early action, including awareness-raising among trustees and senior management, will help prevent inadvertent breaches, support smooth governance, and protect the charity’s reputation and public trust.
Published 27 August 2025
