Chamber and committees

Yes—I agree. The UK Government’s hostile environment policies and no recourse to public funds restrictions limit the support that people, including migrant women experiencing domestic abuse, can access at a time of crisis. The Scottish Government and the Convention of Scottish Local Authorities developed the ending destitution together strategy to prevent and mitigate the effect of destitution that arises from the no recourse to public funds policy. The strategy also presses the UK Government to extend the destitution domestic violence concession to make it available to anyone who is in the UK as a dependant as a result of someone else’s visa or protection status.

Domestic abuse is abhorrent. It is a blight on our society and has no place in the Scotland that we all want to live in.

Through the delivering equally safe fund, we will provide approximately £12.5 million in 2023-24 to domestic abuse support services, including women’s aid organisations, that provide specialist support and access to temporary accommodation. We have been clear that anyone experiencing domestic abuse who has no recourse to public funds should be offered the same level of support as anyone else in Scotland and should not face disadvantage or discrimination because of their immigration status.

The Scottish Government recognises the disruption and the harm that retail crime causes to businesses and the individuals who work in them. As the First Minister made clear in the chamber on 5 October, the Scottish Government supports the innovative Scottish partnership against acquisitive crime strategy. The partnership is led by Police Scotland and includes other organisations such as retailers. It outlines a partnership approach to prevention, deterrence and enforcement in relation to a range of crimes, including shoplifting. I urge anyone who is affected by such incidents to report them to the police.

It is correct to mention that a significant rise in recorded shoplifting is being seen throughout the whole United Kingdom. Our figures and those that were released recently by the Office for National Statistics confirm the existence of a similar trend across England, Wales and Scotland for the year ending in June.

We know that cost of living pressures can influence shoplifting, although they might not be the driver in all cases. The Scottish Government is finalising two pieces of research that consider the relationship between economic performance and crime and the number of crimes that have been recorded under the 2021 act. Those pieces of research are due for publication in the coming months.

Good morning, convener, and good morning, committee. Thank you for the opportunity to speak to the committee about the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No 4) Regulations 2023.

The instrument has been brought forward to deliver changes to existing legal aid regulations, primarily to ensure continuing access to justice in Scotland. It makes provision to ensure that legal advice and assistance will be available to persons arrested under section 27 of the National Security Act 2023. Schedule 6 of that act will, if commenced, create a procedural framework for the arrest of persons reasonably suspected to be involved in “foreign power threat activity”.

Current provision for legal advice and assistance does not cover all the circumstances of detention for such activity, and the regulations will make further provision to ensure that an appropriate regime is in place so that advice and assistance by way of representation can be provided to persons arrested under these provisions in the 2023 act. Without additional provision, there is a risk of persons arrested under the 2023 act being unable to access legal advice, assistance or representation. Similar provision is already in place for those detained under anti-terrorism legislation.

The instrument will also make provision for any carer support payment to be disregarded by the Scottish Legal Aid Board when assessing a person’s financial eligibility for civil legal aid, or children’s legal assistance, and for such payments to be excluded from the recovery where a person has a liability to the Scottish legal aid fund as a result of civil legal aid proceedings. Carer support payment is intended to improve outcomes for unpaid carers by providing financial assistance to those providing regular and substantial care to someone in receipt of a qualifying disability benefit.

Finally, the instrument makes minor amendments and corrections to regulations relating to counsel fees in respect of civil and criminal legal aid.

Convener, that was a brief overview of the regulations and their context. I am happy to answer questions.

On a point of order, Presiding Officer. My app is frozen but I would have voted no.

I value greatly the law reform work that the Scottish Law Commission undertakes to simplify and improve our laws, and I remain committed to introducing bills to implement its recommendations.

The Trusts and Succession (Scotland) Bill, which we are discussing today, is the second SLC bill that the Government has introduced in this session. The most recent programme for government included a commitment to introduce a third SLC bill this year, which will be the eighth SLC bill in a decade, since Parliament updated its rules in 2013.

I recently wrote to the commission to say that my officials had begun detailed work on another three SLC reports—on leases, contract and cohabitation—although decisions on the legislative programme are a matter for Cabinet to decide as part of the development of the annual programme for government.

I thank the Scottish Law Commission for the work that it does and, in the case of trusts, Lord Drummond Young, who is not only a former chair of the SLC but is the lead commissioner who prepared the report on trust law reform and whose recommendations the bill will implement.

I also thank the members and clerks of the Delegated Powers and Law Reform Committee for their work in scrutinising the bill and for the comprehensive and measured stage 1 report. I welcome the committee’s agreement to the general principles of the bill.

Trusts are an important legal structure in Scotland. In modern society, they are used as a solution in an incredibly wide variety of situations, as we have all heard from the evidence that has been given to the committee so far. They are used extensively in individual estate planning, and to protect and administer assets on behalf of vulnerable people, including children, adults with incapacity and people with disabilities. They are also the legal form of many pension funds and are often used in commercial transactions to set funds aside to deal with future liabilities.

Scots law has not kept up to date with the variety of ways in which trusts are used. The principal trust law legislation is now more than 100 years old and was drafted at a time when society was very different. The aim of the bill is to modernise the law of trusts; it takes forward all the substantive recommendations for reform that the SLC proposed.

I thank members for their contribution to this afternoon’s helpful debate. I would also like to repeat my thanks to the Scottish Law Commission for the decade of work that has gone into this reform project and the Delegated Powers and Law Reform Committee for the work that it has done on gathering and listening to the evidence on the bill and for its recommendations.

In general, the bill covers the powers and duties of trustees, the administration of trusts and the powers of the courts in trust matters, and it has one substantive provision on succession. The majority of the current statutory framework relating to trust law is found in the Trusts (Scotland) Act 1921. In modern trust practice, the powers and duties of trustees are markedly different from those set out in the 1921 act. The part that is played by the trust in commercial structures, for instance, means that trust law is of economic importance: trusts are widely used for investment and financial planning. Other examples of the use of trusts include supporting those who are unable to manage their own affairs because they are, for example, under age or they have a disability, to ring fence funds to ensure consumer protection, such as travel companies holding funds provided for holidays, or to hold business or other assets rather than fragmenting ownership.

Current legislation has not kept up with how trusts are now used and the bill represents a significant step in bringing the law up to date, and making it easier for trusters, trustees or beneficiaries to understand what their legal rights and duties are. The SLC’s reform project is the most significant review of the Scots law of trust in the past 100 years, and the bill implements the overwhelming number of recommendations made by it.

Overall, the SLC’s recommendations achieve the aim of modernising trust law, but committee members and members who are here today have identified some points of detail where they consider that improvements can be made to the bill. Although there are these points of debate, I am pleased that there is broad support across the chamber for the general principles of the bill.

I will come to that.

I have heard that the bill containing an express provision on such an ability would be helpful in making it clear that, when assessing the suitability of an investment for a trust, financial returns are not the only consideration that might be taken into account. Environmental and social impacts, for example, could also be relevant considerations. I will consider that further and am looking forward to working with the committee on that.

Another issue that the committee raised is the expenses of litigation. Awards relating to litigation expenses are made at the discretion of the court. When an award is made against trustees, normally the trustee would be personally liable, but they have the right of relief against the trust estate, provided that the expenses are necessarily, properly and reasonably incurred. The bill will alter that: trustees will no longer be personally liable for expenses. The court can, however, impose on trustees personal liability for such expenses in certain circumstances. That includes when the trust property is insufficient to meet the expenses, or when the trustee has brought about the litigation by breach of duty.

As some stakeholders have pointed out, trustees of underfunded trusts have an unfair advantage in raising litigation without being personally liable for expenses. The result would be that a successful litigant would be forced to meet expenses themselves. I have heard the strong statement made by the Law Society that that might put people off accepting office and will act as a disincentive to trustees litigating. During the summer, my officials met the Law Society and the Society of Trust and Estate Practitioners to hear more about their concerns, and I will take the issue away and consider what more can be done in the bill to achieve a better balance between the personal liability of trustees and the problem of underfunded trusts litigating.

Another issue that the committee raised is how “incapable” is defined in the bill. The bill takes a slightly different approach to that which is found in incapacity legislation, and the concern was raised that the two approaches could deviate unacceptably, as future reforms are made. I recognise the problem and I thank the committee for its work on the matter. I will look at the issue again and consider what can be done to lessen stakeholders’ apprehensions.

Finally, I would like to talk about succession, because this is the Trusts and Succession (Scotland) Bill. Two provisions on succession law are included in the bill. One is technical and is intended to clear up potential confusion with the drafting of a section in the Succession (Scotland) Act 2016. The other is more substantive. It makes changes to the order of intestate succession so that the spouse or civil partner of a person who has no children and dies without leaving a will would inherit the entire estate of the deceased person. That change reflects what many people would expect happens already but is not, in fact, reflected in the current law.

I am committed to finding a solution to one issue that is not included in the bill. It involves circumstances in which an unlawful killer is appointed to be an executor of their victim’s estate. The existing law on that is unclear, which is why I instructed my officials to consult targeted stakeholders over the summer. The aim was to test two models that might provide a solution to a deeply upsetting situation. It is important that whatever we put in place is capable of working in practice because we do not want a situation in which the deceased’s estate cannot be administered or its administration is called into question. I have kept the committee up to date on that issue and I will continue to do so.

I move,

That the Parliament agrees to the general principles of the Trusts and Succession (Scotland) Bill.

I am sorry, Mr Kerr, but I have a lot to get on with.

I have listened to each of the points raised by the committee carefully and I will of course take them away and reflect on them before stage 2. I am willing to listen to and, where I can, work with members across the chamber on the bill.

Several members brought up codification. Complete codification of any area of law is never straightforward. The SLC considered the codification of the law but ultimately rejected it. As Lord Drummond Young told the committee, its view was that some areas of the law were better left out of statute, such as that somewhat abstract dual patrimony theory that underpins trusts and the law around express trusts or implied trusts.

The bill reforms all the parts of Scots trust law that have traditionally been dealt with by statute. It consolidates and modernises nearly all of statutory trust law. I am content that the SLC, after extensive consideration of the issue, has identified the right approach to the bill, which is one of focusing on reforming the parts of the law that create problems in practice. I understand the committee’s view that a comprehensive codification would make it easier for a layperson to access and understand the legislation, but as the SLC suggested in evidence, in other jurisdictions where codification has taken place, the statutory law is seldom absolutely comprehensive.

I move on to the issue of section 104 of the Scotland Act 1998, which several members raised. It is critically important that the bill does not leave pension trusts behind. That is why our preferred route to achieving maximum certainty is to work with the UK Government to bring forward an order under section 104 of the Scotland Act 1998 that would apply the bill to pension trusts. We have had positive engagement with officials at the Scotland Office and other UK Government departments, and we are making progress on taking forward a section 104 order. We are at a really early stage of the process, but I will update the committee as and when the situation develops.

Oliver Mundell touched on litigation expenses. Currently, it is usually the case that trustees are personally liable to pay litigation expenses to successful opponents, but they have the right of relief against a trust estate. I have listened to the concerns that the Law Society, in particular, has raised about the potential effect of the relevant provisions. My officials met the Law Society and STEP over the summer to hear directly from them. I will look into the matter again and will consider how we might best deal with the concerns that have been raised by some of the professions.

Willie Coffey raised the emotive issue of murderers as executors. I am committed to introducing reform that would prevent a person who has been convicted of murder from being an executor for their victim’s estate. My officials and I will continue to explore what can be done in the context of the bill to ensure that that happens.

I turn to the definition of “incapacity”, which several members raised. The bill uses a familiar definition of “incapable” that is very similar—although not identical—to the one that is found in the Adults with Incapacity (Scotland) Act 2000. The committee has rightly pointed out that significant and far-reaching changes to mental health legislation have been recommended, and I agree that it would clearly be undesirable for the meaning of “incapable” in trust law to differ from the usual widely understood definition. I can see merit in ensuring that the bill does not diverge from the general law on capacity and that it will keep pace with any changes in the area. I am considering the best approach, with a view to lodging an amendment on the issue at stage 2.

Stephen Kerr made a very important point, which I fully endorse, when he stressed the importance of making a will. That is the only way for us to ensure that our money, our property, our possessions and our investments go to the people we really care about.