Calum H S MacNeill QC



Westwater Advocates’ senior counsel Calum H S MacNeill QC has successfully resisted appeals to the Court of Session by the Office of the Scottish Charity Regulator (OSCR) against a decision by the Upper Tribunal ordering the regulator to include two New Lanark trading companies in the register of charities in a case which sheds light on the “public benefit test” contained in the Charities and Trustees Investment (Scotland) Act 2005.

New Lanark Trust runs the UNESCO World Heritage Site of New Lanark Village, which started as a progressive and philanthropic milling settlement set up in the 18th Century by far-sighted entrepreneurs David Dale and Richard Arkwright, taking advantage of the renewable power provided by the gorge’s waterfall. Under Dale’s son-in-law, the commercial enterprise thrived.  However, in the late 1960’s the last mill ceased its operations and New Lanark Trust set itself up to prevent the village’s dereliction.  In 2018 OSCR refused an application to recognise two trading subsidiaries of New Lanark Trust, New Lanark (Trading) Ltd and New Lanark (Hotels) Ltd, as charities in their own right.

The First-tier Tribunal (General Regulatory Chamber) (FtT), in the first case to have come before it, refused the companies’ appeals.  However, the Upper Tribunal decided that the FtT had not provided adequate or intelligible reasons for its decision and quashed it. Re-making the decision, the Upper Tribunal decided that the trading companies’ activities, while commercial in nature and generating revenue for the Trust, did in themselves all contribute to the bringing back and sustaining of life in the village and ordered OSCR to include the companies in the register. Although the companies were essentially commercial entities, they nevertheless passed the “public benefit test” in the 2005 Act.  OSCR appealed against that decision, but in a 17-page judgment issued last week (29 January 2021) the appeal was refused by the Second Division. OSCR, it decided, had misunderstood the decision of the Upper Tribunal, and the decision had to stand. The judgment, delivered by the Lord Justice Clerk, Lady Dorrian, concluded with the observation that, “Stripped to their essentials the appeals are no more than disagreements with the Upper Tribunal’s conclusions on matters of fact, and they must be refused.”

Calum represented the companies in the FtT, the Upper Tribunal and the Court of Session.