Chamber and committees

Thank you very much. That is helpful.

We heard evidence last week that you need technical and scientific expertise to be able to advise the Scottish and UK bodies. Are there enough people out there to give that advice?

Thank you. Ms Kenyon, do you want to come in on this one?

Good morning to the panel and thank you for coming along today.

I have a question for both of you, and I will start with Professor Macdonald, if that is okay. What involvement, if any, do you have with the Industrial Injuries Advisory Council on matters that are related to industrial injuries disablement benefit?

That is helpful. Lucy, do you want to answer that question as well?

Excellent. I will stop there.

Amendment 57 deals with section 41. The amendment would bring within the scope of the section existing trusts where the truster has expressly provided for anticipated changes in the law on trust deeds. The reason for lodging the amendment is that changes to the law on accumulation periods have been anticipated for some time. Granters of existing trusts might have expressly provided for such changes in the trust deed and should be able to benefit from the new provisions.

The effect of amendment 58, if it is agreed to, would be to bring charitable trusts within the scope of section 41, but restrictions would be retained on the accumulation of income for public trusts that are not charitable trusts. The bill as introduced excludes public trusts that are charitable trusts from the abolishment of restrictions on the accumulation of income. As such, charitable trusts will remain subject to the existing rules on accumulation of income. In my view, that is not appropriate, and the scope of the section should be extended to include charitable trusts.

Trustees of charitable trusts are, under charity and tax law, subject to other rights and duties to manage funds appropriately, and they are subject to oversight by the Office of the Scottish Charity Regulator and His Majesty’s Revenue and Customs. Those rights and duties apply to all charities, whatever their legal form, and they empower OSCR and HMRC to control inappropriate accumulation of income by charities without reference to the expressed restrictions on that accumulation in trust law, which apply only to charities that are constituted as trusts.

There might be reasons that are consistent with a charitable trust’s purpose for income to be accumulated—for example, to generate funds for the next cycle of charity work or for a specific project—and retention of the prohibition of accumulation of income for charitable trusts might inhibit appropriate accumulation and would have little practical purpose when inappropriate accumulation is sufficiently controlled by charity and tax law.

Removal of the existing trust law restrictions on accumulation would bring trusts into line with other legal forms that are available for constitutional charities, whereas retention of the restrictions might make trusts less attractive as a vehicle for constituting charitable work in circumstances in which a trust would otherwise be the most appropriate form.

Non-charitable public trusts are not subject to the same charity and tax law controls as charitable trusts, and there is a case for retaining the existing trust law restrictions on accumulation by public trusts that are not charities. That would guard against excessive long-term accumulation in non-charitable public trusts that are set up to pursue schemes that might take decades to materialise. I think that the amendments will bring clarity.

I move amendment 57.

Amendment 59 provides clarification of the current law. The effect of the amendment would be to clarify that any person who is authorised under the Adults with Incapacity (Scotland) Act 2000, or the law of any country other than Scotland, must have relevant powers that allow them to give approval on behalf of an incapable adult.

The reason for lodging amendment 59 is that, again, appointments under the Adults with Incapacity (Scotland) Act 2000 extend only so far as the specific powers that are conferred on the person who is appointed under the act. Again, amendment 59 will bring clarity on that. I accept that the minister thinks that clarity is already in place, but the amendment will help us, as interpretation of the act takes place.

It would be fair to say that the committee took a lot of evidence on capacity and the appropriate person, and that there was a lot of discussion on it. I have thought long and hard about amendment 51. The minister wrote to the committee to say that the majority of stakeholders were happy with the definition in the Adults with Incapacity (Scotland) Act 2000, and that was the case. However, we took evidence from other stakeholders—academics and others—who thought that the definition might change, and that it does not give absolute clarity for trust law.

I am proposing that the Scottish Government take time to reflect on that further, and also that any definition in regulations would come to the committee in due course. That would allow stakeholders and the Scottish Government to do further work on it and, depending on when the bill—if it becomes an act—comes into force, would also give time to see where we are with regard to any definition in the Adults with Incapacity (Scotland) Act 2000. The power would also allow for clarity in the future that any other new definition could be made by regulations—as the minister’s amendment does. It would give flexibility, which both my amendment and the Government’s amendment do.

The decision for the committee is whether it is comfortable with the definition in the 2000 act, or thinks that we need more time to take more evidence and for the Scottish Government to scrutinise the matter more. My view is that that would be helpful.

Amendment 50 relates to an area on which we have taken evidence. The minister is right that there is a balancing act between the role of trustees who want to remove a trustee and the role of those who do not. My view is that it should not be for the individual who has been removed to have to go to court, but for the trustees who are removing that person, if there is not an agreement to go to court.

The minister almost made the argument for me in her statement, with regard to cost. Her comment was that it could cost the trust money if it had to bring forward such an action.

That argument is true for someone who wants to remain a trustee. There is provision for expenses at the end of the proceedings, but someone who wanted to bring such an action would have to find the initial money—both legal and court fees—to do so. I say that the balance is wrong in that regard; that should be the role of the trustees who want to remove the individual. We should put that burden on the trustees rather than on the person who is being removed.

It would be fair to say that, regardless of the outcome on amendment 50, having to use such a power should be the exception. In most cases people will step down voluntarily, but I say that in the exceptional case the cost should lie with the trust and not with the trustee.

I will support the Government’s other amendments.

With regard to amendment 54, again, it is interesting that, during the evidence session, there was sometimes a conflict between those with an academic background in trust law and those who practise it day in, day out. The Law Society of Scotland helped me to draft amendment 54, and I think that it reflects what practitioners are looking for with regard to day-to-day working. Amendment 54 would extend the effect of protective clauses in the trust deed to all actions and decisions of the trustees and give them that protection.

A trust deed may contain a provision purporting to limit liability or indemnity for breach of a fiduciary duty. That is most likely to be relevant where a trustee is also a beneficiary, and where a trustee’s fiduciary duty would be likely to put their personal interests in conflict with their duty as a trustee. That is often expressly permitted, sometimes with qualifications, in a trust deed. It seems that such protection will continue to be effective because of section 30(2). However, such protection is usually seen to apply more widely than transactions, and it might be more appropriate to allow protective clauses to extend to all actions or decisions of the trustees. That will give greater scope for trustees. As we know, it is sometimes proving more and more difficult to find trustees to do the job, so I hope that such protections will encourage more trustees to come forward.

I am grateful to the minister for her support of amendment 55, which would allow the court to determine that the trust property should bear none of the damages, where that is appropriate.

I am grateful to the minister for accepting amendment 56 and I am certainly happy to work with her if there needs to be some tidying up at stage 3. Amendment 56 is simply a clarification of the provisions on the validity of certain transactions that are entered into by a trustee and extends to transactions in the exercise of powers in the trust deed, as well as those powers that are implied by sections 13(1) and 16(1).

I am happy to support the minister’s other amendments in the group.

I welcome amendment 11, which is in the minister’s name, and will support it. The committee highlighted that issue in our report.

Amendment 47, which was lodged by me, comes after consultation with a number of third sector charities and from my personal experience both as a trustee and having worked in the third sector. I am of the view that the amendment does not change the law in Scotland in any way but that, like amendment 11 in the Scottish Government’s name, it simply clarifies the law so that trustees who work in the charitable sector are clear about it.

Amendment 47 suggests that, when a charity sells heritable property, it does not need always to get best value, if that property is being passed on to another charity. The practical effect of that is to allow charities to support other charities without necessarily getting maximum income. Amendment 47 does not force trustees to do that—it simply clarifies that they can look at it if they want.

I do not believe that that changes the law. Opinions from senior counsel outline the situation as it is in my amendment. All that I seek to do is simply to clarify the law—as amendment 11 also seeks to do—so that charities that are trusts can go forward in their work. The reason for relating the amendment simply to “heritable property” is that that will often be the largest and most valuable asset. That brings clarification.

Amendment 47 is not a new law but a clarification of the law. I ask the committee to support it.