Chamber and committees

Section 61 is about the alteration of trust purposes and attempts to balance the truster’s wishes against the wishes of beneficiaries before an application can be made to the court to alter trust purposes. When the bill was introduced, the section did not apply to private purpose trusts or public trusts, but, after consultation with the Scottish Law Commission about the policy behind the section, it became clear that it should apply to private purpose trusts.

When the section was amended at stage 2, the exception for public trusts was removed unintentionally. That is contrary to the intention behind the section, which is that the trust purposes of public trusts should not be altered by way of an application under section 61. Amendment 22 resolves both of those issues.

I move amendment 22.

Amendment 22 agreed to.

We could look at that in the future, in future legislation. At the moment, because we could not get it in time for stage 3, this is a sensible approach that allows us to address the situation that was raised by the committee. If we had done nothing, it would have been a lost opportunity.

Negative procedure is appropriate for making the regulations, as they will allow illustrative provision to be provided only as an example of what the court could allow in connection with the delegation of trustee functions.

I move amendment 13.

Amendment 13 agreed to.

Section 30—Provision purporting to limit liability for, or indemnify for, breach of fiduciary duty

Amendments 14 and 15 moved—[Siobhian Brown]—and agreed to.

Section 32—Trustees’ personal liability for beneficiary’s loss

Amendments 16 and 17 moved—[Siobhian Brown]—and agreed to.

Section 35—Damages for loss resulting from trustee’s act or omission in ordinary course of administration

Amendment 18 moved—[Siobhian Brown]—and agreed to.

Section 38—Trustees’ liability in relation to certain obligations

Amendment 19 moved—[Siobhian Brown]—and agreed to.

Section 41—Abolition of restrictions on accumulation and on creation of future interests

Amendment 20 moved—[Siobhian Brown]—and agreed to.

Section 49—Protectors

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 There is a general consensus that the law on trusts is outdated, and the changes that are proposed in the bill will make a significant and positive difference for those who use trusts in Scotland.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.

My apologies, Presiding Officer. I am sorry—it is my first stage 3.

A protector’s function is to ensure that the trustee of a trust is appropriately discharging their duties. Although it is almost certainly possible to provide for a protector under Scots law currently, the bill provides legal certainty on the matter.

Section 49 of the bill also provides a statutory list of example powers that a truster may confer upon protectors. Ultimately, it will be up to the truster to decide whether any particular power is conferred on any particular protector, which will depend on the individual circumstances of each case.

Having considered the drafting of the list of example powers further, and having heard further from stakeholders, I have concluded that some of the powers could be stated differently so that they are more in line with the protector’s role. Amendment 21 does that. It removes the illustrative references to protectors directing trustees as to who may enjoy a beneficial interest and, in its place, provides a more consistent approach to the list of illustrative powers that may be conferred on protectors.

I move amendment 21.

Amendment 21 agreed to.

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

The Scottish Fire and Rescue Service is considering the Fire Brigades Union’s “Firestorm” report and, where appropriate, will work with the FBU and other staff representative bodies to address the issues that have been raised. The cabinet secretary and I met the FBU the week before last, I think, and the Scottish Government will work closely with the SFRS to identify budgetary requirements for 2024-25.

The Scottish Government has been engaging regularly with the SFA and the SPFL for some time about our shared concerns over the misuse of pyrotechnics in football. Most recently, I met the SPFL, the SFA and the Football Safety Officers’ Association Scotland last week, on 30 November, and we agreed on the need for a multi-agency approach to tackling the issue. I look forward to working with football and other key partners to develop the approach in the coming weeks.

Our preferred solution has always been that the football authorities themselves be proactively involved in delivering a robust and lasting solution to tackle any unacceptable conduct by a minority of people. As I said, from my recent discussions with those involved, I know that there is a collective will to tackle it. As I have indicated, we will be taking forward a multi-agency approach to tackling the issue, and I look forward to working with our partners on it. I know that Police Scotland will continue to engage with the SFA and the SPFL with regard to the new fireworks legislation and on-going issues at individual fixtures.

The safety and wellbeing of firefighters is a priority for the Scottish Government and the Scottish Fire and Rescue Service. The service continues to make progress through its dedicated contaminants group. It has reviewed processes and procedures to ensure that the risk of contamination is minimised. That includes a review of all fire stations to ensure that they have site-specific control measures to minimise contamination.

The Scottish Fire and Rescue Service is working closely with the Fire Brigades Union and the University of Central Lancashire and is taking action across all aspects of operations to reduce exposure to contaminants, including through investment in new fire appliances and facilities. I will continue to work closely with both the Scottish Fire and Rescue Service and the FBU on that important matter, and I will carefully consider any proposals that would increase the safety and wellbeing of firefighters.