Meeting of the Parliament 11 November 2015
I thank members for a good debate this afternoon. It is clear that there is a great deal of consensus in the Parliament and I am pleased that the Scottish Law Commission’s efforts towards reforming some technical aspects of succession law have attracted cross-party support. We have reflected on the granular dimensions of the bill as well as on broader issues relating to the Scottish Government’s legislative approach to the issues and the possibility of consolidating the bill and future legislation.
However, in closing, perhaps we should revisit the Scottish Law Commission’s original aim in examining this area of Scots law. When launching the 2009 report, Professor Joseph Thomson, the lead commissioner on the succession project, said:
“The aim is to simplify the law radically by providing rules which are easily understood and which at the same time reflect the nature of family structures in contemporary Scotland.”
The test of the bill is whether it achieves the radical simplification that the Scottish Law Commission intended. The Delegated Powers and Law Reform Committee is satisfied that, allowing for the suggested changes at stage 2 of the bill’s parliamentary passage, the bill will achieve the stated aim of the report on which it is based.
However, it is important to remember, as the convener emphasised during evidence to the committee on the bill, that
“the fact that something is not very common does not mean that we do not need to get the law right ... Even if we are not sure that the issue will arise, we still need to make sure that the law says what we think it should say.”—[Official Report, Delegated Powers and Law Reform Committee, 8 September 2015; c 6.]
That comment was made on the strength of a point that I raised regarding the policy rationale for the inclusion of guardianship in section 1, which says that a divorce or the dissolution of a civil partnership should revoke an existing will.
Section 1 also applies to provisions in wills that appoint the testator’s former spouse or civil partner as a guardian of a child. Nigel Don referred to that in his opening speech. However, that provision was criticised by stakeholders, including the Law Society and TrustBar. The key concern is 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 under section 1(3).
As such, there are implications both for the amount of time that it could take to seek parental rights—up to a year and a half—and the cost, which could amount to £6,000 if the client is unable to secure legal aid. TrustBar highlighted the possible inconsistencies that the provision might create between family law and succession law.
The committee explored the issue in some detail with witnesses and I am pleased that the minister has agreed that it would not be appropriate to apply different outcomes to guardianship provisions. That will result in an amendment being lodged by the Scottish Government at stage 2.
Notwithstanding that and other minor criticisms of the bill—and Stewart Stevenson’s speech, which only served to highlight the bill’s complexities—I am pleased to reiterate that the Scottish Conservatives will vote in favour of the bill at decision time.
15:16