Chamber and committees

Good morning. Before I go into detail on the amendment, I put on record my thanks to all those who engaged with the committee at stage 1, in both oral and written evidence. I also thank those who have got in touch with me about stage 2 amendments. In particular, I thank the Law Society of Scotland for helping with what I have been working on.

In section 1, amendment 52 would leave out the word “expedient” and insert “necessary” at line 12 on page 1. The amendment would provide that the court may appoint an additional trustee under section 1(1)(a) only if the court considers it necessary to do so.

I lodged amendment 52 because allowing a court to appoint an additional trustee when it considers it expedient to do so would represent a weakening of the common-law position in Scotland, which refers to the word “necessary”. The amendment would reinstate the position as it is in the common law; it would not change that. That position has worked well over the past number of years and does not need to be altered.

Amendment 53 would clarify that the mere nomination of a sole trustee does not make that individual a trustee unless they have

“accepted office in writing or ... after intimation of their appointment ... acted in a”

fashion that

“indicates that they have accepted office”

as a trustee. The practical reason for the amendment is that, unless we make that amendment, a group of trustees could—in theory—include a trustee who does not want to do the job or is not ready for it. The office of trustee should not be forced on a sole nominee who has not accepted that office and who does not wish to accept it—that person must give their consent. Amendment 53 would clarify that area of law.

I look forward to hearing what the Scottish Government has to say about the other amendments in the group before I respond to them.

I move amendment 52.

I press amendment 52.

I thank the minister for her explanation of her amendments. I particularly welcome amendment 6, which brings clarity regarding the difference between someone acting as a professional trustee and someone who does so on a voluntary, or different, basis. I hope that that will bring some clarity. I also welcome her other amendments in the group.

I will press my amendments 52 and 53. Amendment 52 simply clarifies the common law and reflects what the courts have been doing for some years, so I do not think that it changes anything: it clarifies what is happening.

I will also press amendment 53. I have had conversations with lawyers and with the Law Society, who think that the issue needs to be clarified. Whether or not the amendment is accepted by the committee, I hope that there can be some further discussion with the Scottish Government to clarify the issue, but it would be good to have that in the bill at this stage.

The bill before us is the Trusts and Succession (Scotland) Bill, which will, in due course—we hope—become an act. I think that it would be fair to say, however, that it is heavy on trusts and very light on succession. There is disappointment at that amongst the legal profession, which saw the bill as an opportunity to reform succession law much more widely.

As we heard in evidence both from academics and from those in practice, the question of what those changes should be might have been more controversial and harder to address. However, I think that most would agree that succession law as it currently stands is not fit for the 21st century.

I am aware that the Scottish Government has said that there will be no further legislation on succession law in the current session of Parliament, but perhaps the minister could outline in the stage 3 debate what plans the Government has to extend any consultation on the matter. The Scottish Law Commission has done its work—it is now for the Government to put something out for consultation. I am sure that the committee, and others in Parliament, would be interested to know whether or not there is likely to be a further consultation in the next two and half years, within the current session of Parliament.

Specifically on amendment 48, it seeks to insert a new section amending the Family Law (Scotland) Act 2006 to extend the deadline for a cohabitant to submit a claim from six to 12 months. Clearly, every individual case is different with regard to the grieving process, and the extension would simply give a cohabitant individual a bit more time to consider their views on what they should do. Clearly any time limit will affect some people, but extending the current limit from six to 12 months would give people a bit longer to think through the emotion of what has happened to them. This amendment will, I hope—if it is accepted by the committee—protect some vulnerable individuals.

I move amendment 48.

I thank the minister for her comment about writing to the committee—I am sure that we all look forward to receiving that information from her. I am pleased that the Government is willing to support amendment 48 and I hope that the provision will come into force some time in my lifetime.

Amendment 48 agreed to.

Section 73 agreed to.

After section 73

Amendment 38 moved—[Siobhian Brown]—and agreed to.

Section 74—Interpretation

Amendments 39 and 40 moved—[Siobhian Brown]—and agreed to.

Amendment 49 moved—[Jeremy Balfour].

I press amendment 60.

Amendment 60 agreed to.

Section 56, as amended, agreed to.

Sections 57 to 60 agreed to.

Section 61—Alteration of trust purposes on material change in circumstances

I am grateful for the minister’s support for amendment 57. If it needs tidying up, I would be happy to work with her and her officials on that.

On amendment 58, the minister has almost answered the question whether, if a child protected trust accumulates income for too long, the intervention would come from OSCR. However, under the bill as drafted, if, for example, the charity planned to do something in three years’ time, it could not accumulate money for a three-year period. Now, if any accumulation went on for an excessive period of time and OSCR had concerns, it could intervene and talk to the trustees about it, as could HMRC.

The concern that the minister has expressed—that any accumulation could go on for years and years—is already dealt with by the power that OSCR has. I am concerned that, in the bill as drafted, child protected trusts could not look to make any short-term or medium-term financial accumulation of income to be spent later. Amendment 58 would give OSCR intervention powers, which it already has, and would ensure that the trust is accountable to OSCR and to HMRC.

Amendment 57 agreed to.

Amendment 58 moved—[Jeremy Balfour].

Amendment 60 would clarify the reference in section 55(5)(c), which provides for potential beneficiaries rather than ascertained persons specifically. It would make what is in the bill slightly clearer and, to my mind, clarity is always a good thing.

I am happy to support the other amendments in the group.

I move amendment 60.

I welcome the minister’s amendment 42. It is interesting how difficult it has been for both the Scottish Government and this committee to find the appropriate information. Amendment 42 future proofs the bill. Both the Court of Session and the Sheriff Court are always evolving, as is practice. I welcome amendment 42 so that, if things change in the future, that power is there for the Scottish Government to exercise with the consent of the Lord President.

I welcome amendment 42 and press amendment 60 in my name.

I am not moving the amendment.