The Official Report is a written record of public meetings of the Parliament and committees.
All Official Reports of meetings in the Debating Chamber of the Scottish Parliament.
All Official Reports of public meetings of committees.
Displaying 548 contributions
Delegated Powers and Law Reform Committee
Meeting date: 6 June 2023
Oliver Mundell
Briefly, convener. I had planned to ask about the codification of trust law later, but would you rather that I asked about that now?
Delegated Powers and Law Reform Committee
Meeting date: 6 June 2023
Oliver Mundell
In the same evidence session, we also heard concerns that people might try to draft around the provision or include clauses to create the flexibility to make changes outwith that period. Multiple witnesses at that session seemed to agree that that would not be desirable. Do you take that point on board?
Delegated Powers and Law Reform Committee
Meeting date: 6 June 2023
Oliver Mundell
Thank you.
Delegated Powers and Law Reform Committee
Meeting date: 6 June 2023
Oliver Mundell
Coming back to the points that your officials have made, minister, do you think that this has been a missed opportunity? Some people have been in touch with the committee to say that there could have been a wholesale codification of trust law. Given that we have not had major legislation in this area for a long time and that the bill has come to the Parliament through the SLC process, I imagine that it is unlikely that the Parliament will legislate on trusts on this scale for years. Have we missed the opportunity to do that codification exercise?
Delegated Powers and Law Reform Committee
Meeting date: 6 June 2023
Oliver Mundell
That would be helpful. It feeds into a wider issue—one which will potentially be referenced in other questions—about how people navigate the legislation, bearing in mind that a lot of the individuals who interact with it are not going to be legal professionals. Many people put themselves forward for smaller charitable trusts to try and do something good for society, and having clear advice and guidance for them on how legislation affects them would be useful.
You say that you do not expect an increase in litigation. However, the bill creates a lot of new opportunities for the courts to get involved in trusts, so it is hard to see how there would not be an increase in cases. What is your analysis based on?
Delegated Powers and Law Reform Committee
Meeting date: 6 June 2023
Oliver Mundell
I will leave it for now, convener.
Delegated Powers and Law Reform Committee
Meeting date: 23 May 2023
Oliver Mundell
Touching on that point, but more broadly, on 9 May we heard from legal academics including Professor Gretton and Yvonne Evans, who said that, in practice, a solicitor would just “draft around” a 25-year provision. This question may be for Chris Sheldon and Mike Blair: are we worrying too much about it? Would most trusts be drafted to give some leeway in relation to purpose?
Delegated Powers and Law Reform Committee
Meeting date: 23 May 2023
Oliver Mundell
I am interested in sections 25 and 26. Concern has been expressed to the committee that trustees’ duties to provide information to beneficiaries and potential beneficiaries under those sections are too onerous and that the extent of the duties is uncertain. Do you want to share your views on the provisions, particularly if you have concerns? I am interested in how you would change the sections to address those concerns.
Delegated Powers and Law Reform Committee
Meeting date: 23 May 2023
Oliver Mundell
I want to move on to section 61 of the bill, which gives power to the beneficiaries and others to apply to the court to alter the purposes of a family trust where there is a material change of circumstances. The section sets out the default position that that power cannot be used for 25 years. Is having such a 25-year restriction the correct approach? We would be interested to hear your views on that and your reasoning.
Delegated Powers and Law Reform Committee
Meeting date: 2 May 2023
Oliver Mundell
I want to ask about litigation expenses and, in particular, the Law Society’s concerns about section 65. The Law Society was quite outspoken on that, citing
“a severe danger of a conflict of interest”
and describing section 65 as
“quite a radical provision”,
which, it suggested, may deter people from becoming trustees or lead them to unfavourably settle or to abandon legal proceedings for fear of personal liability. Do you have any comments in response?