Meeting of the Parliament [Draft]

Meeting date: Wednesday, December 20, 2023

Official Report 1026KB pdf

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Trusts and Succession (Scotland) Bill

The next item of business is a debate on motion S6M-11699, in the name of Siobhian Brown, on the Trusts and Succession (Scotland) Bill.

16:30  

I thank the members of the Delegated Powers and Law Reform Committee for their thoughtful and helpful consideration of the Trusts and Succession (Scotland) Bill. I very much welcome their thorough scrutiny of the bill. I also thank the committee clerks for all their hard work and the stakeholders who contributed views and their time as part of parliamentary scrutiny.

This is a Scottish Law Commission bill, so I thank the commission for the considerable work that went into this law reform project. In particular, I thank Lord Drummond Young, who, even though he is no longer chair of the commission, has given his time generously. I know that he is in the public gallery, along with Lady Paton and Charles Garland from the commission.

The Scottish Government has had useful engagement with a number of stakeholders. My officials have met the Law Society of Scotland on several occasions, and they have met the Society of Trust and Estate Practitioners Scotland and the Office of the Scottish Charity Regulator. Those organisations’ practical experience has been especially important in helping me to reach policy decisions on the content of the bill.

Throughout the process, I have listened carefully to the views that have been expressed to the Scottish Parliament and to the committee’s views, and the bill has been amended as a result. I was happy to lodge stage 2 amendments to implement some of the committee’s thoughtful recommendations, particularly on increasing the safeguards for sole trustees, which was a particular concern that the committee raised after hearing evidence directly from trustees. I have also been pleased to support stage 2 amendments that committee members lodged, and I had helpful engagement with Jeremy Balfour on, for example, his amendment that extended—indeed, doubled—the time during which a cohabitant has the right to make a claim on the deceased cohabitant’s estate when there is no will. Today, we have agreed adjustments to other provisions to ensure that they work as intended.

The bill addresses important issues when someone has died without leaving a will, which is, unfortunately, a relatively common occurrence.

I will briefly remind the chamber of some of the bill’s key provisions and what they are intended to achieve. Most of the bill’s provisions relate to the law of trusts and can be found in part 1. The bill makes important changes to trustees’ powers. The current legislation, which dates back to 1921, no longer gives trustees the powers that they need to administer a trust effectively. That makes it difficult for trustees to comply with their paramount duty, which is to give effect to the trust’s purposes in the best interests of the beneficiaries.

An important reform is the conferral of a default general power, which replaces what is an inflexible, complex and restrictive statutory list of powers. As a result, trustees will be able to have all the powers that a competent adult has in relation to their own property.

The bill reforms the duties that are placed on trustees. Those changes better reflect the need for transparency in modern-day trusts. For example, the bill clarifies what information a beneficiary is entitled to expect or request from the trustees. The trustees’ information duties go to the heart of trust law, and the reforms enable beneficiaries to exercise their power to hold trustees to account.

The bill also makes a number of important changes to how trusts are administered, how trustees are appointed or removed and how trustees resign. Many members in the chamber may be aware—perhaps through their constituents—of the fallout from the failure of McClure Solicitors. I am pleased that, collectively, we have been able to make amendments at stages 2 and 3 to respond to the significant practical difficulties that co-trustees may have in removing a trustee who was appointed as a trustee in their professional capacity and is no longer a member of their profession.

The bill cannot resolve the wider issues that the collapse of McClure’s has caused. I know that Stuart McMillan has a keen interest in the matter, and we recently met to discuss what could be done to help those who have found themselves caught up in the situation. I welcome the engagement with him, and I look forward to working constructively with him on it.

Part 2 deals with reforms to the law of intestate succession. The bill implements a Scottish Law Commission recommendation of 2009 so that, when a person dies without a will and is survived by a spouse or civil partner but not by children, the spouse or civil partner will inherit the whole of the net intestate estate. When the Scottish Government consulted on that in 2015, there was agreement with the proposal, and the Scottish Government’s response committed to implementing the recommendation.

I am pleased that we have been able to address the issue, which, depending on the composition and size of the estate, has resulted in the bulk of the estate passing to parents or siblings rather than the surviving spouse. That is not what people expect to happen, and the bill will remedy that situation. We have also taken the opportunity to amend section 2 of the Succession (Scotland) Act 2016 to clarify the drafting so that it is not open to any unintended interpretation.

Finally, in respect of reforming the law of succession, I was pleased to table stage 2 amendments that addressed the unacceptable prospect of a convicted murderer continuing to act as executor of their victim’s estate. There is some uncertainty about the current position on that in Scots law, but the amendments will place it beyond any doubt that an executor who is convicted of, or is being prosecuted for, the murder or culpable homicide of the deceased will be regarded as unfit for that office and can be removed by the court, and that a sheriff must refuse any application for appointment as an executor dative in the same circumstances.

Those amendments fulfil a previous commitment that the Scottish Government made. They also implement a recommendation that the committee made, and I hope that they bring the necessary legal certainty to those who are experiencing that difficult situation. I am convinced that the bill will result in reforms to the law that will benefit all those who are involved in trusts.

I move,

That the Parliament agrees that the Trusts and Succession (Scotland) Bill be passed.

16:36  

I thank the members of the Delegated Powers and Law Reform Committee for their thoughtful and helpful consideration of the Trusts and Succession (Scotland) Bill. I very much welcome their thorough scrutiny of the bill. I also thank the committee clerks for all their hard work and the stakeholders who contributed views and their time as part of parliamentary scrutiny.

This is a Scottish Law Commission bill, so I thank the commission for the considerable work that went into this law reform project. In particular, I thank Lord Drummond Young, who, even though he is no longer chair of the commission, has given his time generously. I know that he is in the public gallery, along with Lady Paton and Charles Garland from the commission.

The Scottish Government has had useful engagement with a number of stakeholders. My officials have met the Law Society of Scotland on several occasions, and they have met the Society of Trust and Estate Practitioners Scotland and the Office of the Scottish Charity Regulator. Those organisations’ practical experience has been especially important in helping me to reach policy decisions on the content of the bill.

Throughout the process, I have listened carefully to the views that have been expressed to the Scottish Parliament and to the committee’s views, and the bill has been amended as a result. I was happy to lodge stage 2 amendments to implement some of the committee’s thoughtful recommendations, particularly on increasing the safeguards for sole trustees, which was a particular concern that the committee raised after hearing evidence directly from trustees. I have also been pleased to support stage 2 amendments that committee members lodged, and I had helpful engagement with Jeremy Balfour on, for example, his amendment that extended—indeed, doubled—the time during which a cohabitant has the right to make a claim on the deceased cohabitant’s estate when there is no will. Today, we have agreed adjustments to other provisions to ensure that they work as intended.

The bill addresses important issues when someone has died without leaving a will, which is, unfortunately, a relatively common occurrence.

I will briefly remind the chamber of some of the bill’s key provisions and what they are intended to achieve. Most of the bill’s provisions relate to the law of trusts and can be found in part 1. The bill makes important changes to trustees’ powers. The current legislation, which dates back to 1921, no longer gives trustees the powers that they need to administer a trust effectively. That makes it difficult for trustees to comply with their paramount duty, which is to give effect to the trust’s purposes in the best interests of the beneficiaries.

An important reform is the conferral of a default general power, which replaces what is an inflexible, complex and restrictive statutory list of powers. As a result, trustees will be able to have all the powers that a competent adult has in relation to their own property.

The bill reforms the duties that are placed on trustees. Those changes better reflect the need for transparency in modern-day trusts. For example, the bill clarifies what information a beneficiary is entitled to expect or request from the trustees. The trustees’ information duties go to the heart of trust law, and the reforms enable beneficiaries to exercise their power to hold trustees to account.

The bill also makes a number of important changes to how trusts are administered, how trustees are appointed or removed and how trustees resign. Many members in the chamber may be aware—perhaps through their constituents—of the fallout from the failure of McClure Solicitors. I am pleased that, collectively, we have been able to make amendments at stages 2 and 3 to respond to the significant practical difficulties that co-trustees may have in removing a trustee who was appointed as a trustee in their professional capacity and is no longer a member of their profession.

The bill cannot resolve the wider issues that the collapse of McClure’s has caused. I know that Stuart McMillan has a keen interest in the matter, and we recently met to discuss what could be done to help those who have found themselves caught up in the situation. I welcome the engagement with him, and I look forward to working constructively with him on it.

Part 2 deals with reforms to the law of intestate succession. The bill implements a Scottish Law Commission recommendation of 2009 so that, when a person dies without a will and is survived by a spouse or civil partner but not by children, the spouse or civil partner will inherit the whole of the net intestate estate. When the Scottish Government consulted on that in 2015, there was agreement with the proposal, and the Scottish Government’s response committed to implementing the recommendation.

I am pleased that we have been able to address the issue, which, depending on the composition and size of the estate, has resulted in the bulk of the estate passing to parents or siblings rather than the surviving spouse. That is not what people expect to happen, and the bill will remedy that situation. We have also taken the opportunity to amend section 2 of the Succession (Scotland) Act 2016 to clarify the drafting so that it is not open to any unintended interpretation.

Finally, in respect of reforming the law of succession, I was pleased to lodge stage 2 amendments that addressed the unacceptable prospect of a convicted murderer continuing to act as executor of their victim’s estate. There is some uncertainty about the current position on that in Scots law, but the amendments will place it beyond any doubt that an executor who is convicted of, or is being prosecuted for, the murder or culpable homicide of the deceased will be regarded as unfit for that office and can be removed by the court, and that a sheriff must refuse any application for appointment as an executor dative in the same circumstances.

Those amendments fulfil a previous commitment that the Scottish Government made. They also implement a recommendation that the committee made, and I hope that they bring the necessary legal certainty to those who are experiencing that difficult situation. I am convinced that the bill will result in reforms to the law that will benefit all those who are involved in trusts.

I move,

That the Parliament agrees that the Trusts and Succession (Scotland) Bill be passed.

16:36  

I am pleased to speak in the debate and to confirm that the Scottish Conservatives will support the bill at decision time. As the minister outlined, this is the first major overhaul of trust law in a century and, having listened to the evidence that has been brought forward, I think that it is clear that this much-needed modernisation will provide clarity and make the law in the area more user friendly.

Although the bill stops short of a full codification of trust law, it has captured the areas on which there is broad consensus. Given that it is a Scottish Law Commission bill that has come through the Delegated Powers and Law Reform Committee, it probably strikes the right balance. I know that, in the stage 1 debate, there was discussion about whether it could have done more on trusts and succession, but the way in which the bill has come to Parliament explains why some aspects are more modest, as it has sought to be less political and controversial and to move the law forward.

As with a great many areas that the Parliament has responsibility for but that do not always appeal to politicians, such bills can find it difficult to get chamber time, and I welcome the process that is now in place with the DPLR Committee. Obviously, no one ever wishes for more work for themselves, but we have worked well as a committee, and we have a new area of interest.

I have only one outstanding and significant concern about the bill, which is about how public awareness raising will be taken forward. That was a theme of the stage 1 debate. These are significant changes to trust law, and how the changes will be communicated to the smaller charities and organisations and individuals who operate in the space is important. Many of them have been doing the same thing for a long time, and many will likely get updated professional advice after the passage of the bill. The Law Society of Scotland is right to highlight in its briefing that a

“comprehensive publicity and awareness-raising campaign for trustees, their professional advisers and the wider public interacting with trusts”

is essential.

Throughout the passage of the bill, we have seen that this is not always the most interesting area that captures everyone’s interest straight away, and I recognise that there is difficulty in getting people to engage. That was the case with some stakeholders and people who work in the area—people do not always have the time or the energy. Sometimes, we think that everybody is watching and listening to every word that is said in the Parliament, and that those in the legal profession pick up on every bill that is passed. I am keen to hear more from the minister about that.

I am sure that unexpected challenges and unintended consequences may arise as a result of the changes, which are significant. In the future, we have to do better at scrutinising the success of legislation that we pass and at evaluating whether it delivers the changes that have been set out.

I could go back through all the things that the bill does, but the minister set that out pretty comprehensively. As I close, I suggest that the Parliament should not wait another century to review the law in this area. Given its significance and central importance—financially and to Scottish society—we should take a bit more interest in it.

I thank all those at the Scottish Law Commission and the many witnesses and organisations who have given their time and energy to get the bill to this point. At times, it must seem like a thankless task and deeply frustrating when their expertise and legal practice are not given the attention that they deserve. I hope that the passage of the bill—provided that colleagues support it, which I urge them to—shows that the processes work and are worth while. The many reports that the Scottish Law Commission has spent time on now seem to be proceeding with pace.

16:41  

I am pleased to speak in the debate and to confirm that the Scottish Conservatives will support the bill at decision time. As the minister outlined, this is the first major overhaul of trust law in a century and, having listened to the evidence that has been brought forward, I think that it is clear that this much-needed modernisation will provide clarity and make the law in the area more user friendly.

Although the bill stops short of a full codification of trust law, it has captured the areas on which there is broad consensus. Given that it is a Scottish Law Commission bill that has come through the Delegated Powers and Law Reform Committee, it probably strikes the right balance. I know that, in the stage 1 debate, there was discussion about whether it could have done more on trusts and succession, but the way in which the bill has come to Parliament explains why some aspects are more modest, as it has sought to be less political and controversial and to move the law forward.

As with a great many areas that the Parliament has responsibility for but that do not always appeal to politicians, such bills can find it difficult to get chamber time, and I welcome the process that is now in place with the DPLR Committee. Obviously, no one ever wishes for more work for themselves, but we have worked well as a committee, and we have a new area of interest.

I have only one outstanding and significant concern about the bill, which is about how public awareness raising will be taken forward. That was a theme of the stage 1 debate. These are significant changes to trust law, and how the changes will be communicated to the smaller charities and organisations and individuals who operate in the space is important. Many of them have been doing the same thing for a long time, and many will likely get updated professional advice after the passage of the bill. The Law Society of Scotland is right to highlight in its briefing that a

“comprehensive publicity and awareness-raising campaign for trustees, their professional advisers and the wider public interacting with trusts”

is essential.

Throughout the passage of the bill, we have seen that this is not always the most interesting area that captures everyone’s interest straight away, and I recognise that there is difficulty in getting people to engage. That was the case with some stakeholders and people who work in the area—people do not always have the time or the energy. Sometimes, we think that everybody is watching and listening to every word that is said in the Parliament, and that those in the legal profession pick up on every bill that is passed. I am keen to hear more from the minister about that.

I am sure that unexpected challenges and unintended consequences may arise as a result of the changes, which are significant. In the future, we have to do better at scrutinising the success of legislation that we pass and at evaluating whether it delivers the changes that have been set out.

I could go back through all the things that the bill does, but the minister set that out pretty comprehensively. As I close, I suggest that the Parliament should not wait another century to review the law in this area. Given its significance and central importance—financially and to Scottish society—we should take a bit more interest in it.

I thank all those at the Scottish Law Commission and the many witnesses and organisations who have given their time and energy to get the bill to this point. At times, it must seem like a thankless task and deeply frustrating when their expertise and legal practice are not given the attention that they deserve. I hope that the passage of the bill—provided that colleagues support it, which I urge them to—shows that the processes work and are worth while. The many reports that the Scottish Law Commission has spent time on now seem to be proceeding with pace.

16:41  

I thank the committee clerks and all those who have been involved in the bill. This is a technical bill, but it will have real impacts on people’s lives. I hope that it will prevent situations such as what happened at McClure Solicitors. McClure went into administration two years ago, and the victims of McClure Solicitors action group held a meeting in the Parliament to raise awareness among MSPs of the serious issues that McClure clients face. Many of them have family protection trusts, wills, lasting powers of attorney and the like. An estimated 100,000 clients were affected, and the vast majority of those people are totally unaware of the issues that stem from McClure going into administration.

Clients who have trusts with McClure Solicitors as trustees often cannot sell assets because the solicitors are still on land registry records. That will result in some properties standing empty for two to five years, which will force families to maintain properties without being able to take action such as selling or renting them. Campaigners for the victims action group highlighted issues with accessing and understanding documents. Many of the clients are elderly, and often their children or close family are left trying to make sense of everything while they have responsibility for looking after elderly parents or—worse—while they are going through a period of grief.

Campaigners spoke of having to pay £750 in administration fees to get McClure’s trustees to sign off trusts at the same time as they received letters from solicitors trying to indemnify McClure and its associates from any future legal action. The campaigners’ experience highlights the human impact of what happens when trusts are not appropriately administered or managed.

Lessons must be learned and processes must be put in place to ensure that that does not happen again. I hope that the bill will do that, but those who have been impacted by McClure need help now. I ask the Scottish Government to look at the issue, because Police Scotland and the Law Society of Scotland will not get involved, and the Scottish Legal Complaints Commission will not get involved. Someone needs to set up an investigation to ensure that those who are affected are assisted properly and get the appropriate settlement to their concerns.

The victims of McClure’s state that most people who have been let down by McClure’s do not yet know that they are victims and that the situation is vastly underreported. Does Rhoda Grant share my concern that the situation could continue to unravel for years to come? Does she agree that it needs serious attention now?

I absolutely agree with Bob Doris and I pay tribute to him for giving voice to the victims of McClure’s and inviting them to Parliament to speak to MSPs. I absolutely agree with his comment and I urge the Scottish Government to act to support those people.

The minister said that the bill will make things better for spouses and civil partners of those who die without a will. It was highlighted that work needed to be carried out on ensuring better protection for cohabitees—people who have not formalised their relationships. With societal changes, that is becoming more and more common. There are people who have been together for a long period, raised families and had grandchildren together but who do not have a will and are not protected in any way.

In that vein, I encourage the Government to ensure that people are aware that they should have wills and a power of attorney. Families need to know what to expect, and they need to be protected when somebody dies. That is not for someone at the end of life—the moment that someone has dependants or is in a relationship with someone who they wish to protect, they need to set those things in order so that their loved ones can better represent their wishes, should the worst happen.

I finish by paying tribute to the Scottish Law Commission. It does a power of valuable work in looking at the law and looking to update it. Much of its work goes unnoticed, and often it does not come before Parliament when it should. It is timely that the bill has come before us, but more of the SLC’s work needs to be looked at. As a Parliament, we need to look at how we deal with the SLC’s work to ensure that it gets the attention that it deserves and that our law remains up to date.

We move to the open debate.

16:46  

First, I will touch on the McClure situation. I raised it in the committee because constituents, some of whom have been seriously affected, came to me with their concerns. My point of caution to colleagues is that, when having dialogue with constituents, they should please give them factually accurate information. The Scottish Legal Complaints Commission is the organisation to deal with the complaints, not the Law Society of Scotland. On 15 January, I am hosting an event in my constituency for constituents to come along to, because of the situation that they have faced with McClure’s. I urge other colleagues to do likewise if they have a large number of people in their patches who have raised the issue with them.

At the outset, I echo the comments from others about the SLC, its work on the bill and its support for the Delegated Powers and Law Reform Committee’s scrutiny of the bill. The extension of the remit of the DPLRC has been an important advance in helping the Parliament to deal with SLC reports that have been completed but for which time had not been found in Parliament to implement the legislative changes that were suggested—a point that Oliver Mundell touched on earlier.

The DPLRC is supportive of the role that it has in scrutinising certain SLC bills. In the past year, the committee has led on two SLC bills, the one that is now the Moveable Transactions (Scotland) Act 2023 and this one. In 2024, the committee will embark on another SLC bill, which has just been introduced—the Judicial Factors (Scotland) Bill. That bill is long overdue, with some aspects of the present law dating back to 1690.

Today, I am not speaking as the convener of the committee, but I know that colleagues past and present who have had the pleasure of serving on the committee encourage the Scottish Government to continue to keep the pipeline of SLC bills coming. The committee is always ready to scrutinise those that meet its criteria for consideration.

I also say, gently, to the whips of all parties that having members serve some time on the Delegated Powers and Law Reform Committee would provide a greater understanding of some of the vital and sometimes unnoticed work that takes place in this Parliament. In my opinion, the DPLRC and the Public Audit Committee provide two invaluable experiences.

Hear! Hear!

Thank you.

I thank those who contributed to the committee’s scrutiny of the bill, whether in writing or by appearing before the committee during one of the evidence sessions. We are grateful for the time and energy that has been given to help the committee in its work.

I also thank committee members for their scrutiny of the bill. We work well together, as Oliver Mundell touched on, in scrutinising all the bills that we encounter. We have the same goal of attempting to improve them to ensure that good laws are created. Oliver Mundell touched on the fact that the law relating to trusts and succession has existed for more than 100 years. I encourage present and future Scottish Governments, whatever their colour, to ensure that it is not another 100 years before the bill is changed.

I know that our work is noticed by relevant business sectors, because feedback is given to the committee from time to time. I thank the minister and her team for the way in which they have worked with the committee to get the best possible outcome for the bill. Their collegiate approach has been appreciated by everyone in the committee. Finally, I thank the first-class clerking team. I know that they enjoy the scrutiny of SLC bills, as it provides them with an experience other than the secondary legislation that we deal with every Tuesday. They assist us tremendously well and deserve recognition for their dedication.

The committee had some successes during the course of stage 2 and stage 3 scrutiny. For example, following an amendment at stage 2, the bill includes the following provisions that were recommended by the committee.

On incapacity, there is an explicit reference to the right of a trustee who has been deemed incapable by fellow trustees to go to court to challenge the decision. The definition of incapacity is now able to be easily updated in the bill, anticipating upcoming changes to this area of law in the context of the final report of the Scottish mental health law review.

The second point is on ethical investment. Following representations at stage 1 and the amendments at stage 2, the bill makes it clear that, unless the legal document creating the trust says otherwise, ethical, social and environmental considerations are relevant when trustees are choosing between otherwise comparable and suitable investments. The committee hopes that that is a small, but tangible, step towards helping us on our net zero journey.

My amendment today will also provide some additional safeguards to help to protect the integrity of trusts and trustees.

The committee also recommended that the bill should be amended to clarify that the law does not permit an unlawful killer to be an executor of their victim’s estate. New sections 6A and 73A, which were inserted at stage 2, deal with those who are convicted of or being prosecuted for murder or culpable homicide and clarify that such individuals are unfit to be the executor of the victim’s estate and, as such, can be removed from that role by the court.

The committee recommended as a priority the timely implementation of an order under section 104 of the Scotland Act 1998, which has come up not just in relation to this bill but in discussion of the Moveable Transactions (Scotland) Act 2023. Thankfully, discussions are well under way between the Scottish and UK Governments, and I know that all committee members are pleased with that. We hope that that is commenced as soon as possible.

With that, I look forward to supporting the Trusts and Succession (Scotland) Bill at decision time.

16:52  

Thank you.

I thank those who contributed to the committee’s scrutiny of the bill, whether in writing or by appearing before the committee during one of the evidence sessions. We are grateful for the time and energy that has been given to help the committee in its work.

I also thank committee members for their scrutiny of the bill. We work well together, as Oliver Mundell touched on, in scrutinising all the bills that we encounter. We have the same goal of attempting to improve them to ensure that good laws are created. Oliver Mundell touched on the fact that the law relating to trusts and succession has existed for more than 100 years. I encourage present and future Scottish Governments, whatever their colour, to ensure that it is not another 100 years before the bill is changed.

I know that our work is noticed by relevant business sectors, because feedback is given to the committee from time to time. I thank the minister and her team for the way in which they have worked with the committee to get the best possible outcome for the bill. Their collegiate approach has been appreciated by everyone in the committee. Finally, I thank the first-class clerking team. I know that they enjoy the scrutiny of SLC bills, as it provides them with an experience other than the secondary legislation that we deal with every Tuesday. They assist us tremendously well and deserve recognition for their dedication.

The committee had some successes during the course of stage 2 and stage 3 scrutiny. For example, following an amendment at stage 2, the bill includes the following provisions that were recommended by the committee.

On incapacity, there is an explicit reference to the right of a trustee who has been deemed incapable by fellow trustees to go to court to challenge the decision. The definition of incapacity is now able to be easily updated in the bill, anticipating upcoming changes to this area of law in the context of the final report of the Scottish mental health law review.

The second point is on ethical investment. Following representations at stage 1 and the amendments at stage 2, the bill makes it clear that, unless the legal document creating the trust says otherwise, ethical, social and environmental considerations are relevant when trustees are choosing between otherwise comparable and suitable investments. The committee hopes that that is a small, but tangible, step towards helping us on our net zero journey.

My amendment today will also provide some additional safeguards to help to protect the integrity of trusts and trustees.

The committee also recommended that the bill should be amended to clarify that the law does not permit an unlawful killer to be an executor of their victim’s estate. New sections 6A and 73A, which were inserted at stage 2, deal with those who are convicted of or being prosecuted for murder or culpable homicide and clarify that such individuals are unfit to be the executor of the victim’s estate and, as such, can be removed from that role by the court.

The committee recommended as a priority the timely implementation of an order under section 104 of the Scotland Act 1998, which has come up not just in relation to this bill but in discussion of the Moveable Transactions (Scotland) Act 2023. Thankfully, discussions are well under way between the Scottish and UK Governments, and I know that all committee members are pleased with that. We hope that that is commenced as soon as possible.

With that, I look forward to supporting the Trusts and Succession (Scotland) Bill at decision time.

16:52  

I begin by thanking the Scottish Law Commission for its detailed and technical work during more than a decade on the different elements of the bill. I am grateful to the Law Society for its work and suggestions, the briefings that I have received from it and the conversations that we have had about this area of law. I put on record my thanks to Stuart McMillan and members of the Delegated Powers and Law Reform Committee for their consideration and scrutiny work.

The Scottish Greens welcome the technical legislation that seeks to deal with the complexities that more than a century of acts and amendments to them has created. The reform and consolidation is the most significant development in trust law for more than 100 years. It is intended simplify our trusts and succession law and to make it easier for solicitors, trusters, trustees and beneficiaries to understand the legal rights and duties.

During the stage 1 debate on the bill, I raised the need to ensure that trusts support positive environmental and social objectives to enhance our environment and community wellbeing. I also stated that, on landholding trusts, the Scottish Greens believe that offshore trusts, blind trusts and private trusts that exist for tax avoidance or ownership secrecy should not be allowed to hold land. Primary beneficiaries of landholding trusts should demonstrate the productive use or development of land for good, while also being locally accountable and accessible. We want our succession law to support collective benefit and fair inheritance principles, and for it not be used to further contribute to Scotland’s land problem.

We remain concerned about the historic inequalities that are embedded in the structures and concentrated patterns of land ownership, and powers within succession law must be considered as part of our wider land reform for community benefit considerations. However, perhaps those issues go beyond some of the technical parameters of the bill that we are discussing.

In conclusion, I reiterate my thanks to those who have got us to where we are today. I look forward to supporting the bill at decision time and to an update on the section 104 discussions that Stuart McMillan referred to.

16:55  

I begin by thanking the Scottish Law Commission for its detailed and technical work during more than a decade on the different elements of the bill. I am grateful to the Law Society for its work and suggestions, the briefings that I have received from it and the conversations that we have had about this area of law. I put on record my thanks to Stuart McMillan and members of the Delegated Powers and Law Reform Committee for their consideration and scrutiny work.

The Scottish Greens welcome this technical legislation that seeks to deal with the complexities that more than a century of acts and amendments to them has created. This reform and consolidation is the most significant development in trust law for more than 100 years. It is intended simplify our trusts and succession law and to make it easier for solicitors, trusters, trustees and beneficiaries to understand the legal rights and duties.

During the stage 1 debate on the bill, I raised the need to ensure that trusts support positive environmental and social objectives to enhance our environment and community wellbeing. I also stated that, on landholding trusts, the Scottish Greens believe that offshore trusts, blind trusts and private trusts that exist for tax avoidance or ownership secrecy should not be allowed to hold land. Primary beneficiaries of landholding trusts should demonstrate the productive use or development of land for good, while also being locally accountable and accessible. We want our succession law to support collective benefit and fair inheritance principles, and for it not be used to further contribute to Scotland’s land problem.

We remain concerned about the historic inequalities that are embedded in the structures and concentrated patterns of land ownership, and powers within succession law must be considered as part of our wider land reform for community benefit considerations. However, perhaps those issues go beyond some of the technical parameters of the bill that we are discussing.

In conclusion, I reiterate my thanks to those who have got us to where we are today. I look forward to supporting the bill at decision time and to an update on the section 104 discussions that Stuart McMillan referred to.

16:55  

As a member of the Delegated Powers and Law Reform Committee, I spoke in the stage 1 debate on the Trusts and Successions (Scotland) Bill in September. It is a pleasure to have the opportunity to update the chamber on the progress of the bill at stage 3. I thank all the members of the committee and, of course, all the committee clerks and the legal team for their excellent work on the bill at stage 2. I note the overwhelmingly positive contribution of the many witnesses and, in particular, I thank the Scottish Law Commission for its invaluable efforts prior to the introduction of the bill and its on-going support and research to ensure that the bill meets the aims and objectives of the proposals in a comprehensive manner, enabling it to be passed by the chamber at stage 3.

When enacted, the bill will be the most significant development in trust law for more than 100 years, continuing and extending the use of Scotland as a favourable jurisdiction for trusts. In my speech in the stage 1 debate, I noted concerns that were raised by stakeholders about the bill’s default position on the personal liability of trustees for court expenses in cases in which the trust property is insufficient to cover any such costs. The committee’s view was that the starting point should be that there is no personal liability on the part of trustees for expenses unless a court deems otherwise. I am happy that amendments to remove personal liability for trustees where the trust property is insufficient to meet the expenses of litigation were passed by the committee at stage 2 and are present in the bill in its final version.

I also noted concerns regarding the bill’s potential interaction with Scotland’s journey to net zero and assured the chamber that the committee would work with the Scottish Government to amend the bill to explicitly allow trustees, subject to the terms of the trust deed, to choose to invest in environmental, social and governance—ESG—investments. Happily, a new section of the bill, 17A, which was inserted at stage 2, covers trustees’ powers to invest. It makes it clear that, unless the legal document that creates the trust says otherwise, ethical, social and environmental considerations are relevant when trustees are choosing between otherwise comparable and suitable investments.

The committee also recommended that the Scottish and United Kingdom Governments pursue the implementation of a section 104 order to apply the changes that are proposed in the bill to pension scheme trusts in order to ensure the smooth running of the bill. I welcome the Scottish Government’s commitment to work with the UK Government to bring forward such an order.

One final point that has been raised by the Law Society of Scotland is that, given that the changes that are set out in the bill represent significant changes to trust law, it is essential that implementation is accompanied by a comprehensive publicity and awareness-raising campaign for trustees, their professional advisers and the wider public who interact with trusts. I look forward to hearing the Government’s plans in that regard.

Finally, given that this will be my final debate in Parliament—I mean in 2023, thank you—I wish everyone here and all my constituents in Glasgow Anniesland all the best for 2024.

Like hitting the microphone with your papers, there are various ways of gaining the Parliament’s attention.

We now move to closing speeches.

16:58  

I think that the most recent attempt at awakening the chamber was more successful than your whacking the microphone earlier, Deputy Presiding Officer.

Scottish Labour is in agreement with the bill and will support it at decision time later this afternoon. As we have heard from a number of speakers during the stage 3 amendment proceedings and in this final debate, it has probably been far too long since a Parliament took a look at the issue. Thanks have to go to the Scottish Law Commission for the work that it has done—quietly, in the background, and then slightly more forcibly—to bring the bill forward. I must also thank the interested parties that supported that work and responded to the bill, including the Law Society of Scotland, the Faculty of Advocates and others.

As others have done, I thank the members of the committee and the clerks who support them for the huge amount of work that they did on the bill. In particular, I put on the record my thanks to Stuart McMillan for his work on the bill and his on-going interest in it. Conveners often go unthanked in the chamber, but I know how much experience and knowledge he has brought to the bill’s consideration. It is thanks to the Government that the bill has been improved with cross-party support. I thank Stuart McMillan for his work.

In summing up, I want to draw members’ attention to a number of matters that other speakers have hinted at. The first of those, which was raised by Bill Kidd and Oliver Mundell, is the importance of an awareness campaign. We have heard about the importance of wills and powers of attorney, and how they can ease the pressure on families if they are dealt with at the appropriate times. Money spent on an awareness campaign would be, to use that old-fashioned phrase, money well spent. As part of such a campaign, MSPs could raise their constituents’ awareness when they have opportunities to do so, but the campaign could also go wider than that. Through it, the Government could point out the importance of both vehicles—powers of attorney and wills—with a view to enabling people to make choices when they are able to do so, thereby avoiding the crises that can arise when that is done too late in the day, or so late that there are concerns about the validity of what is made. It would be nice if the minister could address that in her summing-up speech.

In the short time that I have left, I want to return to amendment 13, which relates to section 19, on which I made an intervention, and the regulations on what a good cause may be. It would be helpful to know whether the Government is considering bringing in any specific good cause identifiers by way of subsequent legislation.

It is nice to have a bill on which there is agreement across the chamber and that has been improved through the parliamentary process. As Oliver Mundell suggested, it should maybe return to Parliament for post-legislative scrutiny in less than 110 years’ time so that we can seek to make improvements.

I will leave it there. I again express my thanks to all those who have been involved.

17:02  

I think that the most recent attempt at awakening the chamber was more successful than your whacking the microphone earlier, Deputy Presiding Officer.

Scottish Labour is in agreement with the bill and will support it at decision time later this afternoon. As we have heard from a number of speakers during the stage 3 amendment proceedings and in this final debate, it has probably been far too long since a Parliament took a look at the issue. Thanks have to go to the Scottish Law Commission for the work that it has done—quietly, in the background, and then slightly more forcibly—to bring the bill forward. I must also thank the interested parties that supported that work and responded to the bill, including the Law Society of Scotland, the Faculty of Advocates and others.

As others have done, I thank the members of the committee and the clerks who support them for the huge amount of work that they did on the bill. In particular, I put on the record my thanks to Stuart McMillan for his work on the bill and his on-going interest in it. Conveners often go unthanked in the chamber, but I know how much experience and knowledge he has brought to the bill’s consideration. It is thanks to the Government that the bill has been improved with cross-party support. I thank Stuart McMillan for his work.

In summing up, I want to draw members’ attention to a number of matters that other speakers have hinted at. The first of those, which was raised by Bill Kidd and Oliver Mundell, is the importance of an awareness campaign. We have heard about the importance of wills and powers of attorney, and how they can ease the pressure on families if they are dealt with at the appropriate times. Money spent on an awareness campaign would be, to use that old-fashioned phrase, money well spent. As part of such a campaign, MSPs could raise their constituents’ awareness when they have opportunities to do so, but the campaign could also go wider than that. Through it, the Government could point out the importance of both vehicles—powers of attorney and wills—with a view to enabling people to make choices when they are able to do so, thereby avoiding the crises that can arise when that is done too late in the day, or so late that there are concerns about the validity of what is made. It would be nice if the minister could address that in her summing-up speech.

In the short time that I have left, I want to return to amendment 13, which relates to section 19, on which I made an intervention, and the regulations on what a good cause may be. It would be helpful to know whether the Government is considering bringing in any specific good cause identifiers by way of subsequent legislation.

It is nice to have a bill on which there is agreement across the chamber and that has been improved through the parliamentary process. As Oliver Mundell suggested, it should maybe return to Parliament for post-legislative scrutiny in less than 110 years’ time so that we can seek to make improvements.

I will leave it there. I again express my thanks to all those who have been involved.

17:02  

I hope that members will be able to hear some of the speech from where I am taking part in the debate this afternoon. I am pleased to be able to speak in today’s stage 3 debate on this important piece of legislation. As others have commented, it is more than 100 years since we have seen a change in the law in this area. I am aware that, for many people, and perhaps even some of my colleagues, the bill can seem like a pretty dry read. It can seem like a very technical bill that will not have an impact on the day-to-day lives of our constituents. Even so, it is an important bill that will be welcomed by many people, especially those in the legal profession and those who execute trusts and wills.

Broadly speaking, the bill will make a good piece of legislation, and I look forward to it being passed in a few minutes’ time. Several colleagues have addressed a number of the issues that have come up, but it is important to note how the bill has been improved as a result of members and the Government engaging constructively. I thank the minister for her work on my amendments, which I believe have improved the bill this afternoon.

One disappointment is that we have not gone far enough on the law of succession. I understand that, as my colleague Oliver Mundell said, we did not want to have a controversial or political bill, but I hope that within the next 100 years we will see more radical reform of the law of succession, which still has many outdated provisions that are not fit for the 21st century. I know that the Scottish Government is going to consult on that, and I hope that a bill on the matter will be passed in the next session of Parliament.

I, too, thank the people who helped the committee and the Parliament to get to where we are today—the Scottish Law Commission, the committee team, the witnesses and those who helped to draft amendments. I suspect that the bill will not get much coverage in the media tomorrow or in the days ahead, but I believe that it can and will make a difference for the better to the lives of individuals here in Scotland, and I look forward to supporting it in a few minutes’ time.

I ask Siobhian Brown to wind up.

17:04  

I ask Siobhian Brown to wind up.

17:04  

I thank the members who have contributed to the debate. There is a general consensus that the law on trusts is outdated, and the changes that are proposed in the bill will make a significant positive difference for those who use trusts in Scotland. I hope that it is clear that we listened carefully to what was said by stakeholders, the committee and other MSPs during stages 1 and 2.

Trust law may sound remote and dusty, but it is important to recognise that it impacts many of us. Trusts have an everyday utility. To put it simply, they are an important means of managing assets for people. For example, payments from the clients of a travel agent or a solicitor may be held in a form of trust. A person may set up a trust to control and protect their family assets, or a trust may be used when someone is too young to handle their affairs or when someone has suffered a serious personal injury. As the number of blended families increases, trusts can help to manage assets between complicated and sometimes difficult family relationships.

I hope that it is clear that the bill matters to all those who are involved in trusts in Scotland, whether as a truster, a beneficiary or a trustee. It will make things simpler and fit for modern-day purposes, which will be of great benefit to those people.

However, if the bill is passed today, as I sincerely hope it will be, there is still a lot of work to be done before its provisions will be capable of coming into effect. During the stage 1 evidence sessions, we heard how important it is, given the significant value that is involved and the fact that there is a sizeable pensions industry in Scotland, that pension trusts are included in the reforms. Work has been under way for some time to engage with the UK Government on the necessary section 104 order under the Scotland Act 1998 to ensure that we will not be left with a black hole in the law and that pension trusts here will benefit from the reforms. There is more work to be done, and we are committed to doing it.

I mentioned earlier Jeremy Balfour’s amendment that relates to cohabitation. Although I was happy to support that, I made it clear that we would not plan to bring that part of the bill into force until such time as the other issues that are encountered by people who attempt to apply for financial provision on the death of a cohabitant are considered further and, if necessary, addressed. I have written to the committee setting out my intention to consult on those issues as part of a wider consultation on the recommendations in the Scottish Law Commission’s report on cohabitation, and I intend that consultation to be published by the summer of 2024.

Throughout the bill’s passage, questions have been raised about wider reforms to the law of succession. The bill was never the legislative vehicle for such reforms. The Scottish Law Commission has produced reports on the issue and we have subsequently consulted on several occasions. It was clear that there was no agreement on the matter among stakeholders and, given that the area of intestate law has potential to impact on us all, it is very important that we take time to get it right. Over the past couple of years, we have been pleased to fund work, which has been carried out under the auspices of the Scottish Civil Justice Hub, to gather data and evidence, including on public attitudes, and to carry out research that can be used to inform policy. This is not an area of law that has been forgotten. On the contrary, work is on-going, and I am happy to keep the committee updated on progress.

Importantly, the bill incorporates powers so that we have the tools and the flexibility to ensure that provisions can be kept up to date. For example, the committee recommended in its stage 1 report that it would be desirable to consider flexibility in the bill to alter the types of trust applications that may be considered by the sheriff and those that may be considered by the Court of Session. The Scottish Government therefore lodged a stage 2 amendment to allow the Scottish ministers to vary the definition of “court” so that either the sheriff court or the Court of Session may consider different types of trust applications.

Another example is the definition of “incapable”. The bill sets out the circumstances in which a person is to be regarded as incapable for the purposes of the bill, and it aligns the definition with the wider incapacity legislation in Scotland. In recognition of the significant and far-reaching changes that have been recommended to mental health legislation and the fact that the precise nature of future changes cannot be anticipated, the bill was amended at stage 2 to provide Scottish ministers with a power to amend the definition of “incapable” to ensure that there is sufficient flexibility to allow trust law to keep pace with the evolving understanding of incapacity.

I will turn to a few points that were made during the debate. Oliver Mundell, Bill Kidd and Martin Whitfield raised the importance of public awareness. I know from discussions with my officials and the Law Society of Scotland that the organisation intends to publicise the changes that the bill will bring about to its members, who are likely to comprise a significant number of professional trustees and professional advisers to Scottish trusts. I am happy to work with the profession to agree what further guidance or awareness is necessary.

Rhoda Grant and Martin Whitfield mentioned the importance of people making wills and powers of attorney. In our positions as MSPs, we should all be highlighting that to our constituents wherever possible. Moving on to section 19, Martin Whitfield asked about good causes. I note that there have been discussions with the law firm CMS Cameron McKenna Nabarro Olswang about covering ring-fenced assets. That is a specific example that relates to section 19.

In conclusion, I repeat my thanks to all those who gave evidence to help to improve the bill during the parliamentary process. I commend the motion in my name to the Parliament.

I thank the members who have contributed to the debate. There is a general consensus that the law on trusts is outdated, and the changes that are proposed in the bill will make a significant and positive difference for those who use trusts in Scotland. I hope that it is clear that we listened carefully to what was said by stakeholders, the committee and other MSPs during stages 1 and 2.

Trust law may sound remote and dusty, but it is important to recognise that it impacts many of us. Trusts have an everyday utility. To put it simply, they are an important means of managing assets for people. For example, payments from the clients of a travel agent or a solicitor may be held in a form of trust. A person may set up a trust to control and protect their family assets, or a trust may be used when someone is too young to handle their affairs or when someone has suffered a serious personal injury. As the number of blended families increases, trusts can help to manage assets between complicated and sometimes difficult family relationships.

I hope that it is clear that the bill matters to all those who are involved in trusts in Scotland, whether as a truster, a beneficiary or a trustee. It will make things simpler and fit for modern-day purposes, which will be of great benefit to those people.

However, if the bill is passed today, as I sincerely hope it will be, there is still a lot of work to be done before its provisions will be capable of coming into effect. During the stage 1 evidence sessions, we heard how important it is, given the significant value that is involved and the fact that there is a sizeable pensions industry in Scotland, that pension trusts are included in the reforms. Work has been under way for some time to engage with the UK Government on the necessary section 104 order under the Scotland Act 1998 to ensure that we will not be left with a black hole in the law and that pension trusts here will benefit from the reforms. There is more work to be done, and we are committed to doing it.

I mentioned earlier Jeremy Balfour’s amendment that relates to cohabitation. Although I was happy to support that, I made it clear that we would not plan to bring that part of the bill into force until such time as the other issues that are encountered by people who attempt to apply for financial provision on the death of a cohabitant are considered further and, if necessary, addressed. I have written to the committee setting out my intention to consult on those issues as part of a wider consultation on the recommendations in the Scottish Law Commission’s report on cohabitation, and I intend that consultation to be published by the summer of 2024.

Throughout the bill’s passage, questions have been raised about wider reforms to the law of succession. The bill was never the legislative vehicle for such reforms. The Scottish Law Commission has produced reports on the issue and we have subsequently consulted on several occasions. It was clear that there was no agreement on the matter among stakeholders and, given that the area of intestate law has potential to impact on us all, it is very important that we take time to get it right. Over the past couple of years, we have been pleased to fund work, which has been carried out under the auspices of the Scottish Civil Justice Hub, to gather data and evidence, including on public attitudes, and to carry out research that can be used to inform policy. This is not an area of law that has been forgotten. On the contrary, work is on-going, and I am happy to keep the committee updated on progress.

Importantly, the bill incorporates powers so that we have the tools and the flexibility to ensure that provisions can be kept up to date. For example, the committee recommended in its stage 1 report that it would be desirable to consider flexibility in the bill to alter the types of trust applications that may be considered by the sheriff and those that may be considered by the Court of Session. The Scottish Government therefore lodged a stage 2 amendment to allow the Scottish ministers to vary the definition of “court” so that either the sheriff court or the Court of Session may consider different types of trust applications.

Another example is the definition of “incapable”. The bill sets out the circumstances in which a person is to be regarded as incapable for the purposes of the bill, and it aligns the definition with the wider incapacity legislation in Scotland. In recognition of the significant and far-reaching changes that have been recommended to mental health legislation and the fact that the precise nature of future changes cannot be anticipated, the bill was amended at stage 2 to provide Scottish ministers with a power to amend the definition of “incapable” to ensure that there is sufficient flexibility to allow trust law to keep pace with the evolving understanding of incapacity.

I will turn to a few points that were made during the debate. Oliver Mundell, Bill Kidd and Martin Whitfield raised the importance of public awareness. I know from discussions with my officials and the Law Society of Scotland that the organisation intends to publicise the changes that the bill will bring about to its members, who are likely to comprise a significant number of professional trustees and professional advisers to Scottish trusts. I am happy to work with the profession to agree what further guidance or awareness is necessary.

Rhoda Grant and Martin Whitfield mentioned the importance of people making wills and powers of attorney. In our positions as MSPs, we should all be highlighting that to our constituents wherever possible. Moving on to section 19, Martin Whitfield asked about good causes. I note that there have been discussions with the law firm CMS Cameron McKenna Nabarro Olswang about covering ring-fenced assets. That is a specific example that relates to section 19.

In conclusion, I repeat my thanks to all those who gave evidence to help to improve the bill during the parliamentary process. I commend the motion in my name to the Parliament.