Chamber and committees

The Scottish Government is committed to exploring the views of the wider general public on intestate succession and we have commissioned research from the Scottish Civil Justice Hub, which is a venture led by the University of Glasgow’s school of law in collaboration with the Scottish Government’s civil law and legal systems division. That phase of research has finished and we are awaiting the report on its findings, which will be published by the hub. When we receive a copy, we will consider whether any next steps need to be taken on succession law reform. The research will be used to inform any future reform, but we have no plans to progress any further primary legislation to reform fundamental aspects of succession law during the current parliamentary session.

Michael Paparakis can give you the history on that.

I will bring in Michael Paparakis, if I may.

All those aspects need to be considered. My officials will go away and consider those carefully, and we will come forward with something as we progress the bill.

I am willing to work with the committee on the definition of “incapable”. The definition of “incapable” in the bill is focused on the decision-making abilities of trustees because, ultimately, the essence of trusteeship is about making decisions to the benefit of others. Therefore, the bill does not reflect the adults with incapacity legislation, as the grounds for assessment in that legislation do not align with the trustees’ functions. Instead, the definition of mental disorder is based on the definition in England and Wales, in section 1 of the Mental Health Act 1983, as amended by the Mental Health Act 2007. That appears to have been on the basis that the English and Welsh definition of mental disorder was at the time more up to date than that used in the Adults with Incapacity (Scotland) Act 2000. I am willing to work with the committee and to take on recommendations to define “incapacity”.

I will bring in my officials to give you the history on that.

Having a statutory style in primary legislation is not necessary or helpful at times—it can become outdated and can be difficult to update. The 1921 act contains only two straightforward styles: a form of minute of resignation and a deed of assumption.

On guidance, in terms of accessibility for laypersons, I am confident that the bill represents a vast improvement on what we have under the 1921 act and other trust legislation. The Government has set out its priorities for this parliamentary session. Preparing guidance on trusts could affect the delivery of those priorities if we need to take resources away from other areas.

I do not think that using a media campaign to communicate what people already expect to happen is an efficient use of public resources.

I have listened carefully to the evidence that has been given to the committee and it seems helpful if trustees who follow rules laid down by the Financial Conduct Authority for the protection of client assets were found to be liable for the breach of fiduciary duty, or otherwise criticised. Those are narrow and technical matters of general trust law that my officials and I need time to consider fully. I agree with Professor Gretton that the issues raised are potentially important. That is why we need to take time to understand them before considering how we can best resolve them. I confirm that I will write to the committee once I have considered the matters fully.

Yes, I think that that could be worth while. Perhaps an official might have more detail on that. Do you want to come in, Michael?

The Scottish Government’s aim is to bring the bill’s provisions and the section 104 order on pension trusts into force at the same time, as that would have the effect of applying the updated trust law in the bill to all types of Scottish trusts, including Scottish pension trusts, at the same time. That is the preferred approach, because it would avoid fragmenting trust law by creating different regimes for pension trusts and other kinds of trusts.

Should a 104 order not be forthcoming in time for the bill’s commencement, there is a range of options to ensure that no gap in the law is created for pension trusts. Sections 78 and 80 would allow provision to be made to keep the Trusts (Scotland) Act 1921 and any other parts of pre-reform legislation in force for pension trusts for as long as required. It would complicate the legislative landscape, and it is not a desirable solution, but it is possible.

Another option is to defer commencement of the bill as long as is necessary to ensure co-ordination with the section 104 order. Again, that is not desirable, but it demonstrates that a gap in the law would not be created.