Hansard

In closing on behalf of the committee, I, too, thank my colleagues for their work on the bill so far, and I again thank the Society of Solicitors in the Supreme Courts of Scotland’s secretary, Robert Shiels, for showing us around the society’s building at Parliament Square. It was a useful visit and helped to set the context for the position that the society, which has an entirely voluntary membership, now finds itself in.

The Solicitors in the Supreme Courts of Scotland Act 1871 forms the statutory constitution for the society. However, one omission from the act was any powers for the society to wind itself up, either because the then members did not foresee a day when the society might not exist, or because they deliberately did not include powers that would allow the society to close down. In 1979, elements of the 1871 act were amended to reflect the changes that had occurred over the previous century, but the issue of the lack of powers was not addressed.

As my colleagues have mentioned, the society’s office bearers were clear from the outset that there is no wish to close the dependents fund or the society in the near future. However, the office bearers have acted prudently by ensuring that, should the bill be passed today, the society’s constitution will now set out the necessary powers to allow it to be wound up.

In the bill’s accompanying documents and in evidence to the committee, the promoter set out a number of alternatives that were considered instead of primary legislation. The promoter’s memorandum notes:

“Under the common law, the doctrine of cy pres would allow trustees to make an application to the Court of Session to have the terms of a public trust varied where the purposes of the trust are or have become impossible to fulfil or have become particularly inappropriate.”

However, due to the nature of the dependents fund, any attempt by the trustees to close the fund or vary the payment of entitlement to lump sums against future entitlements, means that, according to the promoter,

“a cy pres scheme is very unlikely to be approved by the Court.”

The promoter also noted that section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 gives the sheriff court and the Court of Session powers to

“approve a scheme for the variation or reorganisation of the trust purposes”

in any public trust. However, as with the cy pres scheme, the trustees believed that to be unsuitable for the dependents fund.

The trustees also considered sections 39 and 40 of the Charities and Trustee Investments (Scotland) Act 2005 as a means of providing the required powers but concluded that

“the use of the Fund cannot be said to be dedicated to charitable purposes as such and so it would not seem to qualify”

under the 2005 act.

The bill therefore seeks to modernise the society’s statutory constitution, which is the 1871 act, and its purposes include giving the society powers to wind itself up in the future; creating new types of membership; making new provision to allow members of the society to resign; and abolishing the offices of librarian and fiscal.

One of the other objectives of the bill is to update some aspects of the act’s terminology. Widows fund is being changed to dependents fund and reference to lawful children is being removed. The bill will allow the trustees to pay annuity claims based on cohabitation, depending on the facts and circumstances between the deceased member and the claimant.

As I noted at preliminary stage, the promoter is also removing the offices of librarian and fiscal. The role of fiscal was a historic office for handling matters of discipline, which are now dealt with by the Law Society of Scotland and the Scottish Legal Complaints Commission. The office of librarian is being removed because, although the society will still have a librarian, that person is no longer required to be a qualified solicitor.

As my colleagues have noted, 11 amendments were lodged on behalf of the promoter at the consideration stage. Those amendments improve the bill and strengthen the procedures surrounding the winding up of the society and the dependents fund. I am grateful to the promoter for taking on board the recommendations in our preliminary stage report.

The amendments not yet mentioned by my colleagues include minor and technical amendments, such as ensuring that the 1871 act is consistent in terms of style. One amendment also clarified the type of meeting that a member holding one of the new forms of membership that the bill creates would not be entitled to participate in.

The bill has been fascinating to work on, not least because it has meant that the committee has played a small part in a society that has been in existence for more than two centuries. When the society was formed in 1784, and made a body corporate through a royal charter that was granted in 1797, I doubt that the founding members could have envisaged their society being debated in the Scottish Parliament more than 200 years later. Perhaps we might think of what might be happening here in 2220.

The setting up of the widows fund—now the dependents fund—in 1817 also means that annuities have been paid to the surviving spouses and orphans of the society’s members for more than 200 years.

I agree with the committee’s recommendation that the Scottish Parliament agrees that the bill be passed.