Hansard

As a member of the Delegated Powers and Law Reform Committee, I spoke in the stage 1 debate on the Trusts and Successions (Scotland) Bill in September. It is a pleasure to have the opportunity to update the chamber on the progress of the bill at stage 3. I thank all the members of the committee and, of course, all the committee clerks and the legal team for their excellent work on the bill at stage 2. I note the overwhelmingly positive contribution of the many witnesses and, in particular, I thank the Scottish Law Commission for its invaluable efforts prior to the introduction of the bill and its on-going support and research to ensure that the bill meets the aims and objectives of the proposals in a comprehensive manner, enabling it to be passed by the chamber at stage 3.

When enacted, the bill will be the most significant development in trust law for more than 100 years, continuing and extending the use of Scotland as a favourable jurisdiction for trusts. In my speech in the stage 1 debate, I noted concerns that were raised by stakeholders about the bill’s default position on the personal liability of trustees for court expenses in cases in which the trust property is insufficient to cover any such costs. The committee’s view was that the starting point should be that there is no personal liability on the part of trustees for expenses unless a court deems otherwise. I am happy that amendments to remove personal liability for trustees where the trust property is insufficient to meet the expenses of litigation were passed by the committee at stage 2 and are present in the bill in its final version.

I also noted concerns regarding the bill’s potential interaction with Scotland’s journey to net zero and assured the chamber that the committee would work with the Scottish Government to amend the bill to explicitly allow trustees, subject to the terms of the trust deed, to choose to invest in environmental, social and governance—ESG—investments. Happily, a new section of the bill, 17A, which was inserted at stage 2, covers trustees’ powers to invest. It makes it clear that, unless the legal document that creates the trust says otherwise, ethical, social and environmental considerations are relevant when trustees are choosing between otherwise comparable and suitable investments.

The committee also recommended that the Scottish and United Kingdom Governments pursue the implementation of a section 104 order to apply the changes that are proposed in the bill to pension scheme trusts in order to ensure the smooth running of the bill. I welcome the Scottish Government’s commitment to work with the UK Government to bring forward such an order.

One final point that has been raised by the Law Society of Scotland is that, given that the changes that are set out in the bill represent significant changes to trust law, it is essential that implementation is accompanied by a comprehensive publicity and awareness-raising campaign for trustees, their professional advisers and the wider public who interact with trusts. I look forward to hearing the Government’s plans in that regard.

Finally, given that this will be my final debate in Parliament—I mean in 2023, thank you—I wish everyone here and all my constituents in Glasgow Anniesland all the best for 2024.