Chamber and committees

Thank you, convener, and good morning. The draft regulations will, if passed, amend the First-tier Tribunal for Scotland Local Taxation Chamber and Upper Tribunal for Scotland (Composition) Regulations 2023, the Council Tax (Alteration of Lists and Appeals) (Scotland) Regulations 1993 and the Council Tax Reduction (Scotland) Regulations 2021.

A suite of regulations to effect the transfer of functions of the council tax reduction review panel and the valuation appeal committees to the local taxation chamber of the First-tier Tribunal for Scotland came into force on 1 April 2023. At the same time, some limited functions of the Lands Tribunal for Scotland were transferred to the Upper Tribunal. They related to non-domestic rates valuation appeals and referrals. Prior to the transfer of functions, those appeals or referrals were from the valuation appeal committees.

The draft regulations amend the composition of the Upper Tribunal when it hears appeals or referrals from the local taxation chamber. They align the composition of the Upper Tribunal when it hears valuation rating appeals with its composition when it hears all other appeals.

The draft regulations also amend the timescales that are set out in the Council Tax (Alteration of Lists and Appeals) (Scotland) Regulations 1993. Prior to the transfer of functions, an assessor had six months in which to carry out certain functions when they were of the opinion that a proposed alteration of a council tax valuation band was not well founded. That time period was substituted in transfer regulations to create a period of six weeks. Following representations from stakeholders, there are concerns that that timeframe is overambitious, so the draft regulations will amend it back to six months.

The draft regulations also make a consequential amendment to regulation 94 of the Council Tax Reduction (Scotland) Regulations 2021.

The president of the Scottish tribunals was consulted with regard to the regulations, in line with the requirements of the Tribunals (Scotland) Act 2014. I understand that the Delegated Powers and Law Reform Committee considered the draft regulations on 30 May and was content with them.

I am happy to answer any questions, convener.

I will bring in my officials to give you the history on that.

In terms of accessibility for laypersons, I am confident that the bill represents a vast improvement on what we currently have under the 1921 act and in other trust legislation. Given that trusts are used in a widely varied and ever-changing range of circumstances, producing and maintaining guidance that accommodates the breadth of purposes to which they are put would be a significant undertaking.

The Government has set out its priorities for this parliamentary session. I take on board Mr Balfour’s points regarding enhancing accessibility to people who are volunteering, but at this stage I think that any sort of campaign in that respect would not be a good use of public resources.

I am not concerned that it is going to put people off, but I am willing to consider the issue further. I will bring in my officials, who might be able to give you some history on the work that has been done previously.

The Scottish Government is committed to exploring the views of the wider general public on intestate succession and we have commissioned research from the Scottish Civil Justice Hub, which is a venture led by the University of Glasgow’s school of law in collaboration with the Scottish Government’s civil law and legal systems division. That phase of research has finished and we are awaiting the report on its findings, which will be published by the hub. When we receive a copy, we will consider whether any next steps need to be taken on succession law reform. The research will be used to inform any future reform, but we have no plans to progress any further primary legislation to reform fundamental aspects of succession law during the current parliamentary session.

On the risks of abuse, section 7 contains a number of safeguards against abuse of the power by trustees. First, a majority of the trustees must agree before a co-trustee can be removed from office; the power cannot be exercised by a minority of trustees or a single trustee acting without the support of a majority. Moreover, if a trustee abuses the power, it can be challenged in court. Trustees who wrongfully remove co-trustees might be in breach of a fiduciary duty and might find themselves removed, and if they have acted negligently or in bad faith, they can be personally liable for court expenses. My view is that the bill contains sufficient safeguards to ensure that trustees exercise the power appropriately, but I will ask whether any of my officials want to add further to the history behind this.

I am happy to take on any recommendations that the committee makes.

Perhaps my officials might want to come in on that point.

It is the Scottish Government’s view that there should be a default time period that must elapse before the proposed jurisdiction can be exercised. The 25-year limit was chosen because that section of the bill is intended to deal predominantly with long-term trusts and the problems that can arise in relation to those.

The SLC considered that 25 years provided an easily workable default route that represented a short generation. A default time limit also helps to avoid the risk that family members who are unhappy with a trust might mount an early application to have the trust’s terms altered before any material change of circumstance has occurred.

The 25-year limit cannot be extended by a truster, but a truster can shorten that limit or do away with it altogether. I have heard evidence from stakeholders on the matter and, although some have suggested that 25 years is too long, none have suggested an alternative time period.

I will consider any recommendations that the committee makes in its stage 1 report, including any alternative recommended time limit.

Not at this stage, no.

I thank Mercedes Villalba for her question. The bill uses a familiar definition of “incapable” that is very similar, but not identical, to the one found in the 2000 act. The committee has, rightly, pointed out that significant and far-reaching changes have been recommended for mental health legislation.

I agree that it would be undesirable for the meaning of “incapable” in trust law to differ from the usual widely understood definition, and I see merit in making sure that the bill does not diverge from the general law on capacity and that it keeps pace with any changes in that area. As a result, I am willing to work with the committee and the SLC to explore how that can be done. I have also asked my officials to look at possible solutions, whether that be adopting the definition of “incapable” used in the adults with incapacity legislation by conferring a regulation-making power on Scottish ministers to alter the definition of “incapable” in this bill or by some other means.