Seòmar agus comataidhean

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.

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

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 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.

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.

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.