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Chamber and committees

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 4 May 2021
  6. Session 6: 13 May 2021 to 8 April 2026
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Displaying 1549 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

STEP Scotland was also critical of a further requirement to be met before the court power could be used, which is that the person who set up the trust must now be dead. Does the Scottish Government still think that that requirement should be in section 61? What was the rationale for that provision?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

That does not cover all situations, however. For example, I could have a trust as a person with a physical disability. If the person who is the trustee loses capacity for whatever reason and I lose capacity at the same time, how will the trust run if nobody else has been appointed? How will my payments be made?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

Are you not concerned that people will be put off becoming trustees, if they do not understand how the role works, if they always have to consult lawyers and if there is no kind of style document? A lot of trusts are already struggling to find people. Are you not concerned that that will put more people off? What analysis have you done of that situation?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

I appreciate that the bill was drafted by the Scottish Law Commission, however it is now a Government bill, so the Government’s view must be that that is the right thing to do.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

We will move on, if that is okay, minister.

Some stakeholders have queried how the Office of the Scottish Charity Regulator’s powers under the charities legislation in relation to charitable trusts interact with the bill’s provisions that affect charitable trusts. For example, how does OSCR’s power to appoint interim trustees interact with the court’s power to appoint trustees under section 1 of the bill? If a protector is appointed to a charitable trust under chapter 7 of the bill, how will their powers and duties interact with OSCR’s powers to regulate charitable trusts? Will you offer some explanation on those two specific points?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

Okay, thanks.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

The concern that we heard in evidence was about how to know that someone was incapable. People’s capacity can come and go, and the worry is that the decision might come down to four or five people sitting around a table who have no medical training but are concerned that an individual might not have capacity. You are asking people who have no medical knowledge or perhaps no legal background—smaller trusts might have to take legal advice—to take on a large responsibility, and concern was expressed about putting a lot of pressure on volunteers to make medical decisions.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

Okay. Thank you for that.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

No, convener—that was very helpful.

On sections 7 and 12, we have heard quite a lot of evidence, particularly last week, that it would be difficult for trustees to reach a decision on whether a particular trustee was incapable, and there was concern about the possible abuse of those sections, with trustees perhaps trying to get rid of each other by using that methodology. Should there be a statutory procedure for assessing a specific trustee’s capacity by a third party, such as a medical professional, or would there be drawbacks in going down that road?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

In the evidence that we have heard, particularly last week, there seemed to be some confusion with regard to the different types of trusts, as we have discussed already. Obviously, the Scottish Law Commission did not consider that, but has the Government considered trying to define a bit more clearly the different types of trust and how they work in practice? Indeed, we heard evidence from an individual with quite a lot of expertise in being a trustee, and she was not sure where one of the trusts that she is dealing with at the moment would fit into the bill. Has any thought been given to trying to define different forms of trusts, and if not, why not?