Committee
Delegated Powers and Law Reform Committee 06 June 2023
06 Jun 2023 · S6 · Delegated Powers and Law Reform Committee
Item of business
Trusts and Succession (Scotland) Bill: Stage 1
I want to take us back briefly to the question about the definition of “incapable”. I remember that the committee heard another view. As I have said, the suggestion was made to us that, rather than having a new, albeit similar, definition in the bill, the bill could refer to the Adults with Incapacity (Scotland) Act 2000 so that, as that is updated, the definition in the bill would automatically be updated. However, STEP Scotland raised a potential concern with us about tying the definition to that act, because “Scots law applies to trustees of Scottish trusts even if they are not Scots law jurisdiction persons.”—Official Report, Delegated Powers and Law Reform Committee, 16 May 2023; c 34. That means that, if we have the definition in the bill, we would at least be clear that it applies to trustees of Scottish trusts. Have you considered that suggestion? Should we be concerned about it, or would it not cause issues? Would it be quite straightforward to simply link the definition to the 2000 act?
In the same item of business
The Convener
SNP
Under agenda item 2, we will take evidence on the Trusts and Succession (Scotland) Bill from Siobhian Brown, the Minister for Victims and Community Safety. W...
The Minister for Victims and Community Safety (Siobhian Brown)
SNP
Good morning, convener and committee. Thank you for giving me the opportunity to speak to you about the Trusts and Succession (Scotland) Bill, which is the s...
The Convener
SNP
I will open the questions, the first of which is on section 104 orders. We faced a similar situation with the Moveable Transactions (Scotland) Bill. Will you...
Siobhian Brown
SNP
Yes. So far, we have had positive engagement with the officials at the Office of the Advocate General, the Scotland Office and other United Kingdom Governmen...
The Convener
SNP
A couple of weeks ago, at the conveners’ group meeting, I asked the First Minister whether he thought that some type of protocol regarding section 104 orders...
Siobhian Brown
SNP
Yes, I think that that could be worth while. Perhaps an official might have more detail on that. Do you want to come in, Michael?
Michael Paparakis (Scottish Government)
Certainly. I am aware, convener, that you raised the question with the First Minister, and I think that he agreed to take it away for further consideration. ...
The Convener
SNP
Assuming that the bill is passed by the Parliament, can you indicate how long you think that it will take for any associated section 104 order to come into f...
Siobhian Brown
SNP
The Scottish Government’s aim is to bring the bill’s provisions and the section 104 order on pension trusts into force at the same time, as that would have t...
The Convener
SNP
Thank you. Over to Mercedes Villalba.
Mercedes Villalba (North East Scotland) (Lab)
Lab
Good morning, minister. I want to move us on to section 75 of the bill and discuss definitions of “incapable” and “mental disorder”. The committee has heard ...
Siobhian Brown
SNP
I thank Mercedes Villalba for her question. The bill uses a familiar definition of “incapable” that is very similar, but not identical, to the one found in t...
Mercedes Villalba
Lab
Thank you.
Jeremy Balfour (Lothian) (Con)
Con
Good morning to you, minister, and to your officials. I wonder whether I can just briefly follow up that point. I think that, in the evidence that we took, t...
Siobhian Brown
SNP
I will bring in Michael Paparakis, if I may.
Michael Paparakis
I am happy to answer that. As this is an area that we have yet to explore, we have not fully worked out what the advantages and disadvantages might be. Obvio...
Jeremy Balfour
Con
Okay. Thank you for that.
The Convener
SNP
Jeremy, just before you go on to your other question, I should add that one concern that the committee has heard quite clearly, certainly in the evidence tha...
Michael Paparakis
Certainly. As the minister has pointed out, it is something that we are willing to work with the committee and the SLC on to make sure that the definition in...
The Convener
SNP
Thank you. I am sorry, Jeremy.
Jeremy Balfour
Con
No, convener—that was very helpful. On sections 7 and 12, we have heard quite a lot of evidence, particularly last week, that it would be difficult for trus...
Siobhian Brown
SNP
On the risks of abuse, section 7 contains a number of safeguards against abuse of the power by trustees. First, a majority of the trustees must agree before ...
Michael Paparakis
On the procedure with regard to obtaining a report, you have heard from stakeholders that, when decisions have to be made, there is sometimes a need to move ...
Jeremy Balfour
Con
The concern that we heard in evidence was about how to know that someone was incapable. People’s capacity can come and go, and the worry is that the decision...
Michael Paparakis
I come back to the minister’s point about the safeguards against abuse. I would also reiterate my point that the power in section 7 is not mandatory—it does ...
Jeremy Balfour
Con
The problem is that they need the individual’s consent to get a medical report, which might mean the trustees having to persuade the person in question, who ...
Michael Paparakis
Again, there are other options in the bill for removing a trustee. Trustees have the power to apply to the court and, in certain cases, beneficiaries also ha...
Jeremy Balfour
Con
Okay—I will move on. The Scottish Law Commission told us in evidence that an aggrieved trustee who wanted to challenge a decision on their capacity could us...
Siobhian Brown
SNP
Michael Paparakis can give you the history on that.
Michael Paparakis
If the committee wanted to make a recommendation in that respect, we would be happy to consider it. Ultimately, though, the Scottish Law Commission did not f...