Committee
Delegated Powers and Law Reform Committee 29 September 2015
29 Sep 2015 · S4 · Delegated Powers and Law Reform Committee
Item of business
Succession (Scotland) Bill: Stage 1
I am grateful to John Mason for bringing up the issue, because it is a very important one. We continue to reflect on the views that have been expressed about whether the appointment of a former spouse or civil partner as the guardian of a child should be set out as an exception to the section 1 rule. That would be the case only when one of the parents had accepted the child or children as part of the family and did not already have parental rights and responsibilities. On one hand, the Scottish Government shares the view of the Scottish Law Commission that it must be assumed on divorce that, as legal separation severs all ties between the testator and their ex-spouse or civil partner, it was not the testator’s intention for them to be appointed as the guardian of the child unless they had made express provision in a will under section 1(3). In our view, that provides a more equitable outcome that is more likely to be line with the testator’s wishes. Having said that, we acknowledge the concern that has been raised in evidence to the committee, that because the appointment of a guardian can be made not only in a will but in separate documentation, there is a risk that guardians will be treated differently according to what documentation has appointed them. We are continuing to think very carefully about the equity of the approach and whether in such circumstances the remedy of an application to the court for guardianship would be proportionate. I appreciate the significance of the issue in relation to step-parents, civil partners and others who may have had a role in a child’s life. We need to continue to reflect on those matters and consider whether we need to make changes to the bill.
In the same item of business
The Convener
SNP
With that, we turn to agenda item 2, which is our stage 1 consideration of the Succession (Scotland) Bill. Today, we will take oral evidence from the Scottis...
The Minister for Community Safety and Legal Affairs (Paul Wheelhouse)
SNP
I would be grateful if I could make a very brief statement, convener. I thank the committee for inviting me to give evidence this morning. I welcome the rec...
The Convener
SNP
Thank you very much for that brief statement, which covers some of the areas that colleagues will, I am sure, want to question you on more closely. I think ...
Paul Wheelhouse
SNP
That is a very important question. As I said in my opening statement, we need to make laws as understandable as we can, so that it is not necessary for peopl...
The Convener
SNP
It is tempting to suggest that a rather more important document might be one called “What to do before death”.
Paul Wheelhouse
SNP
That is a fair point.
The Convener
SNP
The issue affects all of us—there are some inevitabilities in life. On that wonderful note, we will go to John Mason, who will ask about section 1.
John Mason (Glasgow Shettleston) (SNP)
SNP
Minister, I note that you referred to guardians being dealt with in section 1. Provisions in wills appointing guardians are included in the scope of section ...
Paul Wheelhouse
SNP
I am grateful to John Mason for bringing up the issue, because it is a very important one. We continue to reflect on the views that have been expressed abou...
John Mason
SNP
I appreciate your comments. There is a feeling that families are becoming more complex these days. Step-parents are quite a regular feature now; I do not thi...
Paul Wheelhouse
SNP
Absolutely. I recognise that from my own family. It is a common feature of society today and we need to reflect the modern society in which we live. I take t...
John Mason
SNP
What about the fact that there are other deeds that affect guardianship? Is this the right bill into which to bring all that?
Paul Wheelhouse
SNP
The bill is making some important but largely technical adjustments that will bring legislation into line with the current experience in society. As to wheth...
John Mason
SNP
Okay. Thank you.
The Convener
SNP
We turn to John Scott for consideration of the timing of revocation.
John Scott
Con
The committee has heard mixed views about when section 1 should take effect. Arguments on both sides have made reference to what is consistent with the broad...
Paul Wheelhouse
SNP
Is that question framed specifically with respect to the domicile issue?
John Scott
Con
Yes.
Paul Wheelhouse
SNP
The Scottish Law Commission is of the view that in order to provide an appropriate link with Scotland the rule should apply where the testator dies domiciled...
John Scott
Con
So you are not persuaded in any way by TrustBar’s arguments for an alternative approach?
Paul Wheelhouse
SNP
We will continue to listen to the views of the committee. If the committee has a strong view that counters the position that we have taken today and the view...
The Convener
SNP
Thank you for putting the Government’s view on the record. We will shortly be reflecting on the totality of the evidence, and if we feel that we need to impr...
Richard Baker (North East Scotland) (Lab)
Lab
A number of witnesses have argued, both for reasons of principle and for practical reasons, that the current scope of sections 3 and 4 should be expanded to ...
Paul Wheelhouse
SNP
Mr Baker raises an important issue. I believe that we have reflected on the views that have been expressed by other witnesses to the committee. As he has sai...
Richard Baker
Lab
That might well be helpful. I take your point that the key issue is about there being another person involved in the process.
Paul Wheelhouse
SNP
That is my understanding.
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
SNP
I want to explore the nature of the other person that you are seeking to catch. It seemed, on the basis of evidence that the committee has had, that the lega...
Paul Wheelhouse
SNP
I am happy to be corrected by Jill Clark and Kathryn MacGregor if I am incorrect, but I understand that, in the framing of the legislation to date, we have n...
Jill Clark (Scottish Government)
The minister is absolutely right. We do not have a view that it need be a legally qualified person. It could be a layperson. It is about things being lost in...
The Convener
SNP
Before we come back to Stewart Stevenson’s question, I would like to pursue that. If I have heard you aright, you are suggesting that the important thing is ...