Chamber and committees

The SLC consulted on that issue, and its allocation of jurisdiction between the courts met with general agreement. Currently, most trust litigation is conducted through the Court of Session, while some matters, such as appointing and removing trustees, can be heard in the sheriff courts. The bill expands the types of cases that can be considered by the sheriff court.

Trust litigation is a technical and specialised area that requires considerable expertise at judicial level and among those who present cases. There is a designate trust judge at the Court of Session who has the level of specialism that is required. The bill takes a balanced approach, conferring jurisdiction on the sheriff court where practical but ensuring that complex matters will be dealt with by a single court that has sufficient expertise to ensure consistency in decision making. The SLC looked at other legal systems and found that other countries similarly ensure that trust cases are dealt with by specialist judges who have appropriate expertise.

We are going with what the SLC says at this stage, but we are open to consideration.

I am happy to do so.

I will work with officials and report back to the committee.

The SLC proposed that its recommendations be given effect by the amendment of sections of the Court of Session Act 1988. However, those sections were repealed back in 2014, at around the same time that it published its report on trust law. It is not our intention to do away with that useful method for trustees to obtain advice on administrative difficulties that are encountered in a trust, and the repealed provisions of the 1988 act were replaced by a much wider and more general power for the court to determine its own procedure, which could include powers to give directions. That is why the relevant section was removed from the SLC’s draft bill for introduction.

Officials communicated the decision to remove the provision from the SLC’s draft bill to the Lord President’s private office when the bill was introduced. I have listened to the views of various stakeholders who have given evidence to the committee—in particular, to the view of the senators of the College of Justice—and I am happy to take the matter away and consider it further.

You raise some valid points. We are happy to consider them.

OSCR has had the power to appoint an interim charity trustee since 2010. The Charities (Regulation and Administration) (Scotland) Bill will simply extend the circumstances in which OSCR can appoint interim charity trustees. That power is not new.

Similarly, the Court of Session has long-standing powers in trust law to appoint trustees. The power in section 1 of the bill simply replaces the existing power of the court to appoint trustees, and that is not new, either. That can be done following an application from OSCR where there is misconduct, or where it is necessary to protect charitable assets.

I will bring in Michael Paparakis, if I may.

I ask Michael Paparakis, who has worked on the bill during its history, to comment on that.

I thank Mercedes Villalba for her question. The bill uses a familiar definition of “incapable” that is very similar, but not identical, to the one found in the 2000 act. The committee has, rightly, pointed out that significant and far-reaching changes have been recommended for mental health legislation.

I agree that it would be undesirable for the meaning of “incapable” in trust law to differ from the usual widely understood definition, and I see merit in making sure that the bill does not diverge from the general law on capacity and that it keeps pace with any changes in that area. As a result, I am willing to work with the committee and the SLC to explore how that can be done. I have also asked my officials to look at possible solutions, whether that be adopting the definition of “incapable” used in the adults with incapacity legislation by conferring a regulation-making power on Scottish ministers to alter the definition of “incapable” in this bill or by some other means.