1. At its meeting on 12 December 2023, the Delegated Powers and Law Reform Committee considered the delegated powers contained in the Trusts and Succession (Scotland) Bill as amended at Stage 2.

2. The Scottish Government Bill was introduced on 22 November 2022. The lead committee is the Delegated Powers and Law Reform Committee.

3. The delegated powers in the Bill have previously been considered by the Committee at its meeting on 17 January 2023, with its report on the delegated powers in the Bill at Stage 1 subsequently being published on 19 January 2023.

4. In its capacity as lead committee for the Bill, the Committee considered and completed Stage 2 on 14 November 2023. Following Stage 2, two new delegated powers have been added to the Bill. The Scottish Government has therefore produced a Supplementary Delegated Powers Memorandum (“Supplementary DPM”) which sets out its reasons for taking the supplementary delegated powers in the Bill and for the procedure chosen.

5. The Committee is considering the powers under Rule 9.7.9(b) of the Standing Orders, in relation to any new or substantially altered powers provisions in the Bill as amended.

Section 74A (1) – Power to amend jurisdiction in relation to trusts

Power conferred on: Scottish Ministers

Power exercisable by: Regulations made by Scottish statutory instrument

Parliamentary procedure: Affirmative

Revised or new power: New

Provision

6. Section 74A (1) confers power on Scottish Ministers, by regulations, to make provision conferring on or removing from the Court of Session or the appropriate sheriff court, the power to decide particular types of cases relating to trusts. In exercising this power the Scottish Ministers may modify the definitions of “the court” and “the appropriate sheriff court” in section 74 and may also make such incidental, supplementary or consequential provision relating to the jurisdiction of the courts in connection with such changes. Regulations under this section may only be made with the consent of the Lord President of the Court of Session.

Committee consideration

7. The Supplementary DPM states that this power is intended to provide flexibility to amend which types of trust application would be considered by the sheriff court and which would be considered by the Court of Session. It is further explained that trusts is a technical and specialised area that requires expertise by those dealing with them in the courts and over time it may be considered that certain applications should be dealt with in the sheriff court or should be dealt with in the Court of Session. This power would allow such changes to be made.

8. This power has been brought forward following recommendations made by the Committee, in its capacity as lead committee on the Bill, to provide flexibility to alter the types of cases the various courts can consider. It is clear how this power would be exercised and in addition there is also requirement for consent to be obtained from the Lord President of the Court of Session before regulations could be made ensuring engagement with the Courts prior to implementing any changes. The regulations permit the amendment of primary legislation and so the affirmative procedure is appropriate in this instance to provide a high level of parliamentary scrutiny.

Section 75A (2) – Meaning of incapable and related expressions

Power conferred on: Scottish Ministers

Power exercisable by: Regulations made by Scottish statutory instrument

Parliamentary procedure: Affirmative

Revised or new power: New

Provision

10. Section 75A(2) confers power on Scottish Ministers, by regulations, to modify the definition of “incapable” in the Bill and modify the effect of that definition.

Committee consideration

11. The Supplementary DPM states that the definition used within the Bill presently aligns with incapacity legislation in Scotland. However, as the Committee pointed out in its capacity as lead committee when providing Stage 1 scrutiny of the Bill, there are significant changes to that legislation recommended and it is not known what that will look like in the future. This power will allow changes to be made to the definition used in the Bill to provide the flexibility to keep pace with the mental health legislation in Scotland as it evolves.

12. This power is limited to modifying the definition of incapable used in the Bill which appears appropriate give there are likely to be changes to that meaning in Scotland in the future. It is clear how this power would be exercised and in what circumstances. The regulations permit the amendment of primary legislation and so the affirmative procedure is appropriate in this instance to provide a high level of parliamentary scrutiny.