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Delegated Powers and Law Reform Committee 14 November 2023

14 Nov 2023 · S6 · Delegated Powers and Law Reform Committee

Item of business

Trusts and Succession (Scotland) Bill: Stage 2

Balfour, Jeremy Con Lothian Watch on SPTV

Amendment 59 provides clarification of the current law. The effect of the amendment would be to clarify that any person who is authorised under the Adults with Incapacity (Scotland) Act 2000, or the law of any country other than Scotland, must have relevant powers that allow them to give approval on behalf of an incapable adult. The reason for lodging amendment 59 is that, again, appointments under the Adults with Incapacity (Scotland) Act 2000 extend only so far as the specific powers that are conferred on the person who is appointed under the act. Again, amendment 59 will bring clarity on that. I accept that the minister thinks that clarity is already in place, but the amendment will help us, as interpretation of the act takes place. It would be fair to say that the committee took a lot of evidence on capacity and the appropriate person, and that there was a lot of discussion on it. I have thought long and hard about amendment 51. The minister wrote to the committee to say that the majority of stakeholders were happy with the definition in the Adults with Incapacity (Scotland) Act 2000, and that was the case. However, we took evidence from other stakeholders—academics and others—who thought that the definition might change, and that it does not give absolute clarity for trust law. I am proposing that the Scottish Government take time to reflect on that further, and also that any definition in regulations would come to the committee in due course. That would allow stakeholders and the Scottish Government to do further work on it and, depending on when the bill—if it becomes an act—comes into force, would also give time to see where we are with regard to any definition in the Adults with Incapacity (Scotland) Act 2000. The power would also allow for clarity in the future that any other new definition could be made by regulations—as the minister’s amendment does. It would give flexibility, which both my amendment and the Government’s amendment do. The decision for the committee is whether it is comfortable with the definition in the 2000 act, or thinks that we need more time to take more evidence and for the Scottish Government to scrutinise the matter more. My view is that that would be helpful. Amendment 50 relates to an area on which we have taken evidence. The minister is right that there is a balancing act between the role of trustees who want to remove a trustee and the role of those who do not. My view is that it should not be for the individual who has been removed to have to go to court, but for the trustees who are removing that person, if there is not an agreement to go to court. The minister almost made the argument for me in her statement, with regard to cost. Her comment was that it could cost the trust money if it had to bring forward such an action. That argument is true for someone who wants to remain a trustee. There is provision for expenses at the end of the proceedings, but someone who wanted to bring such an action would have to find the initial money—both legal and court fees—to do so. I say that the balance is wrong in that regard; that should be the role of the trustees who want to remove the individual. We should put that burden on the trustees rather than on the person who is being removed. It would be fair to say that, regardless of the outcome on amendment 50, having to use such a power should be the exception. In most cases people will step down voluntarily, but I say that in the exceptional case the cost should lie with the trust and not with the trustee. I will support the Government’s other amendments.

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Delegated Powers and Law Reform Committee 14 November 2023

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