STEPHEN MAXWELL

In July last year the Scottish charity regulator OSCR - the Office of the Scottish Charity Regulator - published the results of its first review of a sample of Scottish charities against the public benefit test provided for in the 2005 Scottish Charities Act.

The results calmed the nerves of Scottish charities, nervous about the implications of the new Act but barely registered beyond the charitable sector itself - with one exception.

OSCR's judgement that the High School of Dundee satisfied the public benefit test provoked a flurry of debate between the critics and defenders of the charitable status enjoyed by Scotland's fee-paying schools.

Within the next few weeks OSCR is due to publish the result of its second round of reviews. This time its decisions are likely to be more contentious.

In the first review, Dundee High School was the sole representative of fee-paying schools. But the current review covers 11 schools, including some of Scotland's most prestigious and expensive fee-paying schools, notably Gordonstoun, Merchiston Castle, St. Leonards, and George Heriot's.

The critics of the Dundee decision focused on two elements of the public benefit test legislated for in the 2005 Act.

The first required OSCR as Regulator to consider whether access by the public to the benefits provided by a charity was "unduly restrictive" and specifically directed the Regulator's attention to the way access is affected by "any fees and charges".

The second element required the Regulator to take into account any disbenefit' to the public created by a charity's activities.

Critics charged OSCR with wrongly applying the public access provision on two counts. First, that it did not give sufficient weight to the restrictive nature of the High School's selective admissions procedures and, secondly, that it failed to inquire into the affordability to Dundee families of the £8,000 plus annual fee, choosing instead to concentrate on the 13% of the school's pupils who received help in paying the fees.

The same charge of failing to make proper inquiry was also levelled against OSCR's treatment of the public disbenefit provision. On this OSCR contented itself with an ad hoc judgement that it could not observe any public disbenefit to the people of Dundee from the activities of the High School.

But it failed to interrogate the ample evidence provided by the Sutton Trust and others of the grossly disproportionate access which the pupils of fee-paying schools enjoy to the country's top universities and jobs.

While the decision on Dundee High School creates a precedent, OSCR has always made it clear that it will keep its application of the Act under review and respond to new evidence as it becomes available.

Indeed, it has just completed a second round of public consultation on its implementation of the charity test to date and announced that it is to commission independent research into the affordability of charitable fees and charges.

But the record of the Scottish Parliament's consideration of the Scottish Charities Bill suggests strongly that Parliament's intention was that a majority share of a charity's benefits should be accessible to the general public.

As a Scottish statutory agency it really has no choice but to give new Scottish statute precedence over English case law, however hallowed by tradition.

One way or another, sparks will fly.

,li>Stephen Maxwell is Associate Director of the Scottish Council for Voluntary Organisations (SCVO) but writes here in his role as a volunteer charity trustee.