Chamber and committees

That is helpful. I was just trying to understand the position, because the memorandum talks about changing circumstances. Over that longer period, there have been lots of changing circumstances and, if the principles have generally remained constant, I would just like to understand the efficiency argument for changing them. However, that is more of a comment than a question.

What would that look like, as a process? You mentioned having a statement of reasons. I am just trying to understand where that would fit in. Obviously, all secondary legislation that comes to the Parliament comes with an explanation from the Government, setting out the need for it at the time.

Sorry to interrupt, but have you asked for any more information from the Government?

I share that concern, which is something that the committee thought about, and I know that other committee members are also concerned. The landscape is complicated, which is why one of the key recommendations in our report is that good guidance should be available. We recognise that many people who are involved in trusts do so as volunteers or do not have detailed experience or understanding of the law. Anything that the Government can do to provide clarity is really important.

I move to some key issues. Although this is an SLC bill, it is important that the Scottish Government and the minister take ownership to ensure that any concerns or suggested improvements that have come to light through the parliamentary process are acted on, fully considered and, where possible, incorporated into a strengthened final bill. It may be tempting to think that it will all fall back on the SLC or others. However, I am pleased that, as we see in the minister’s response to the stage 1 report, the Scottish Government seems to be taking an active interest in resolving some of the committee’s concerns.

In her remarks, the minister touched on section 65, which is on litigation expenses. I emphasise that the concerns about that, which the committee discusses in its report, continue. The Law Society of Scotland was quite outspoken on section 65 in its written evidence. It stated:

“This is quite a radical provision. There are real issues with the default being that the trustees personally pick up the liability for expenses where the trust property is insufficient unless they can show that would be unfair. This may put people off accepting office and will more than likely be a disincentive for trustees to litigate”.

Section 65 gives me cause for concern on two grounds. First, I am not sure that SLC bills are the place for radical provisions and major departures from existing practice. Secondly, I am concerned about the practical implications that the provisions may have, with individual trustees potentially being left protecting their own financial interests rather than doing what is best for the trust. I understand that there is a fine balance to be struck, but I believe that section 65 needs further work and clarification. I welcome the confirmation that the minister is considering the provisions and I hope that the Government will lodge amendments at stage 2 to make them absolutely clear. I am also keen to understand the evidence on underfunded trusts entering litigation, and to get a sense of how much of a real problem that is at present. I have not seen that or heard any real evidence of it.

I also draw the minister’s attention to section 61 and the 25-year limit. Again, I am pleased that the Scottish Government has welcomed the committee’s recommendation on that, and I understand that the matter is being considered with a view to an amendment being lodged at stage 2 regarding the circumstances in which an application may be made to the court.

Although a range of views were expressed, the committee agreed that, on balance, the 25-year period in the bill is appropriate. However, we stated that we would like a caveat to be added that would allow the court to permit alteration of the 25-year period in exceptional circumstances. That would enable the law to capture, for example, circumstances that were not reasonably foreseeable at the time when the trust was created but which are detrimental to the operation of the trust. That seems pragmatic and it would strengthen the bill.

I also flag up the on-going concerns about incapacity, which were mentioned by the convener and touched on by the minister. There are concerns about how incapacity is defined in the bill and how things will work in practice. I am sure that other members will cover those in further detail, but I am clear that amendments are needed in that regard if we are to have confidence that we have got the legislation right.

I commend the committee’s stage 1 report, which covers those and many other aspects of the bill in much greater detail than I have managed to do in the time allotted today. It is clear that we have an important and much-needed piece of legislation in front of us. I hope that, through stages 2 and 3, we can get to a point where we can all be confident in it.

I begin by apologising to members for participating remotely. I had planned to be in Parliament in person, but I have had flu symptoms and a temperature overnight and felt it best not to bring that to the chamber.

I say at the outset that Scottish Conservatives will support the bill at decision time and that we endorse the Delegated Powers and Law Reform Committee’s report. Although the law affecting trusts may not be at the top of the political agenda, it is clear from the work that has been undertaken by the Scottish Law Commission, the Scottish Government and, latterly, by the committee itself, that, more than a century since the last major reform, modernisation of the law is not only desirable but badly needed and broadly supported.

As it stands, the bill represents a significant step forward, but detailed work is still needed to ensure that the legislation is workable and to address the concerns of key stakeholders. The committee noted that work remains to be done in a number of areas of the bill and was sympathetic to stakeholders’ concerns about parts 1 and 2 of the bill.

More generally, a matter that I pressed the minister on at committee is that there is a feeling in some quarters, especially after having waited 100 years for change, that the bill misses the opportunity to do more, particularly with regard to maximising the codification of trust law. My colleague Stephen Kerr asked the convener why the committee is content to proceed with the bill when those concerns have been raised. One reason for doing so, as Stuart McMillan said, is that starting substantive new work on the bill would have caused delays. There was also strong evidence from a number of witnesses, including the SLC, that some areas of trust law are not settled and that case law is not sufficiently established to support full codification.

I remain keen to see more codification and note that the Law Society of Scotland’s briefing for today’s debate argues that more could be said about the nature and constitution of trusts. Like the Law Society, I would be interested to hear more from the Scottish Government about the other options that it is looking at to take that work forward outside the scope of the bill and, in particular, to define different types of trust. I would be keen to hear more from the minister about that in closing.

I move to some particular issues that need further attention.

I want to push a bit more on framework bills. They give ministers and the Government increased flexibility, but Parliament loses something in the process. I know that there is always a trade-off between Parliament and Government—I accept that—but as an individual member of the Parliament I worry about my ability to influence the likes of the proposed agriculture bill on behalf of my constituents. If everything is in secondary legislation, the chance to lodge amendments, to have them voted on and to have a transparent debate and process is limited. That changes the nature of the debate and negotiation on a policy. One example is that the committee’s members—or a majority of the members of the committee—had the same view on the National Care Service (Scotland) Bill. What is your reflection on that, as a parliamentarian?

That process clearly takes something away from my constituents. I do not want to get into the politics of it, but that will be the case for members from other parties, including Scottish National Party MPs in the UK Parliament.

There are parts of the country where people did not put their trust in the Government and, because of the decision to go down the framework bill route, their elected representatives in Parliament do not have the option of lodging amendments to show what the alternatives were, and to see the Parliament vote on them.

Is there still a firm commitment to introduce one bill in year 4 and one in year 5?

That would be great. I appreciate what you say but, given some of the previous issues, we would also appreciate any background that you can provide on the work that the Scottish Government has done, as it is some time since the consultation on the proposal took place. It would be good to hear what has been going on in the background.

Looking beyond the proposed bill on judicial factors, you will be aware that the Minister for Victims and Community Safety recently wrote to Lady Paton, the chair of the SLC, committing Scottish Government officials to undertake “detailed work” on the SLC’s report on an approved scheme for financial provision and cohabitation breakdown, its “Report on Aspects of Leases: Termination” and its “Report on Review of Contract Law: Formation, Interpretation, Remedies for Breach, and Penalty Clauses”. I understand what you have said to my colleague Jeremy Balfour about not being able to look too far into the future, but I would be interested to hear your view on whether those bills might come to the committee through the rest of the parliamentary session.