Hansard

I welcome the opportunity to speak on behalf of the Delegated Powers and Law Reform Committee on the Succession (Scotland) Bill. This is a Scottish Law Commission bill. It is only the second such bill to be considered by the committee following changes to standing orders in 2013 that provided that certain Scottish Law Commission bills may be referred to the DPLR Committee as the lead committee.

Before I talk about the bill’s specifics, I will briefly reflect on the commission’s role and the value of updating the law. The Scottish Law Commission plays a vital role in recommending reforms that are aimed at updating and improving Scots law. However, until recently, the take-up of commission-inspired bills has been very low. The process allows such bills to be given the consideration that they deserve and allows important reforms to be implemented. We must do what we can to ensure that Scots law is up to date and accessible. The Standards, Procedures and Public Appointments Committee is reviewing the Scottish Law Commission bill process, and I hope that the outcome will build on the progress that we, as a Parliament, have made in improving the implementation of commission reports.

I turn to the bill. First, I thank all those who provided written and oral evidence to the committee. In addition to receiving the written submissions, the committee heard from legal and academic representatives over four oral evidence sessions. The bill covers very complex matters and the committee greatly appreciated the detailed evidence that it received.

The bill covers a disparate selection of measures that relate to succession law. It originates from a 2009 report of the Scottish Law Commission, which built on the recommendations of a commission report of 1990. The fact that those original recommendations had not been implemented rather makes the point.

It is clear that there has long been recognition of the need for reform in this area. Evidence to the committee reflected the need for reform; it also reflected the fact that the bill will contribute to the process of reform. The committee recognises the need for reform and the contribution that the bill will make to that process.

However, as the minister mentioned, the bill is only part of the reform of the law of succession. The Scottish Law Commission’s 2009 report also contained proposals that would make more wide-ranging reforms to the law of succession. The Scottish Government has been consulting on those proposals with a view to legislating further. The committee recognises that the wider consultation covers matters that require further consideration and that those matters might not be appropriate for an SLC bill. The committee therefore appreciates the necessity of a second bill on succession.

Nonetheless, having two bills on succession in such short order may present challenges and in particular may be confusing for the users of the legislation. With that in mind, the committee discussed with witnesses whether there would be value in consolidating the legislation after the second bill, and that approach was supported. The committee welcomes the Government’s commitment to considering consolidation in the context of a future succession bill. Consolidating the two bills would improve the accessibility of the law for the public, which the Parliament should always strive to do.

As I mentioned, succession is a complex area of law that impacts on the public widely. The committee welcomed the Scottish Government’s recognition of that and its commitment to review and update its guidance on what to do after a death. The committee remains of the view that it would be helpful to have guidance on what people need to do before death, as the minister noted, and it encourages the Scottish Government to reflect on the benefits of such guidance. We should all be aware of the desirability of leaving a properly functioning will.

As I said, the bill covers a disparate and varied set of measures in relation to succession, and members will be pleased to hear that I have no intention of covering most of them. I do, however, want to cover a few.

Section 1 provides that, if a marriage ends in divorce or a civil partnership terminates by dissolution, any provision in a will that benefits the testator’s former spouse or civil partner will not take effect. Section 1 applies to provisions in wills that appoint the testator’s former spouse or civil partner as a guardian of a child. That means that, under section 1 as it stands, a former spouse or civil partner could not become a guardian of a child.

Witnesses argued that it might be desirable in some cases for a former spouse or civil partner to become a guardian, irrespective of the absence of express provision to that effect, and that it would be unfortunate if their only option was to seek parental rights through lengthy and costly legal proceedings. The committee found those arguments persuasive, so it is pleased that the Scottish Government has agreed to lodge an amendment at stage 2 to remove the appointment of guardians from the effect of section 1.

Another area that I will highlight relates to survivorship. Sections 9 to 11 deal with the law relating to survivorship in the event of a common calamity, such as a car accident, in which two or more people’s deaths were simultaneous or it is not clear which person lived longer. A number of issues arose in relation to those sections. In particular, witnesses expressed concern about the situation in which a family perish together and, because the order of death is uncertain, the estate falls to the Crown rather than to other relatives.

Although the committee recognises that such a situation will arise rarely, it would not want the estate to fall to the Crown in such circumstances. It seems highly improbable that that would ever have been the testator’s wish. I am pleased that the Scottish Government is reflecting on the matter, and I hope that a solution will be found that avoids the possibility of the estate falling to the Crown, as far as that is practicably possible.

The committee expressed concern about the inconsistency of expression in the ancillary powers in the bill as compared with other bills. That is not a new concern. The committee welcomes the Scottish Government’s commitment to reflect further on how ancillary powers are expressed. We acknowledge that there might be reasons for framing the ancillary powers in a specific bill in a particular way, but we feel that there frequently seem to be differences in how such powers are framed that do not make much sense in the context.