Welcome to the 19th meeting in 2023 of the Delegated Powers and Law Reform Committee. I would like to remind everyone present to please switch to mobile phones to silent. The first item of business is to decide whether to take items 4, 5 and 6 in private as a committee content to take these items in private. Moving to agenda item number 2, we are taking evidence on the trust succession Scotland Bill from Siobhan Brown MSP, the Minister for Victims and Community Safety. The minister is accompanied by four Scottish Government officials, Michael Paparakis, the policy manager in the private law unit, and from the legal director, Jamie Bowman, Jane Duncan and John Thomson. I remind all attendees to not worry about turning on the microphones during the session, as he is controlled by broadcasting. I would like to invite you to say very welcome to all of you to the committee today. I would like to invite the minister to make some opening remarks. Good morning, convener, and good morning committee. Thank you for giving me the opportunity to come along today to speak to the committee about the trust and succession bill, the second Scottish law commission bill this session. Trusts are an important legal structure in Scotland and in modern society are used as a solution in an incredibly wide variety of different situations, as the committee has already heard from evidence so far. They are used extensively by charities and by pension funds in commercial transactions to set funds aside to deal with future liabilities in individual estate planning and to protect and administer the assets on behalf of vulnerable people such as children, adults with incapacity and with disabilities. Scots law, however, has not kept up to date with increasing variety of situations in which trusts are used. The bill aims to modernise the law of trusts and take forward all of the substantive recommendations for reform contained in the Scottish Laws Commission report on trusts. Given the versatility of the trust and the uses that it is put to, the policy aim is to make sure that the law of trusts is clear and coherent and can respond appropriately to modern conditions. The huge variety of uses to which trusts are put also presents a challenge. The bill must work equally well for large-scale commercial or charitable trusts as well as small-scale family trusts. Some of the key changes made by the bill are to update the powers of duties of trustees, including introducing a non-judicial method for removing trustees, restate trustees' power of investment, set out trustees' duty of care and trustees' duty to provide information to beneficiaries and to confer a number of important powers on the court, including a new power to alter trust purposes after the period of 25 years has been allowed. There are also two provisions on succession law. One is technical and is intended to clear up potential confusion with the drafting of the section in the Successions Scotland Act 2016, and the other is more substantive. It makes changes to the order of interstate succession so that the spouses and civil partner of a person who has no children and dies without leaving a will would inherit the entire estate of the deceased. This important change reflects what many people would expect to happen already, which is not reflected in the current law. The committee has heard from a number of stakeholders who have welcomed and has been positive about the bill. I am aware that there have been points of detail raised, which I am sure we will come on to discuss, but I would like to say at this stage that I am willing to work with committee on some of the issues that they raised previously within the committee. I am happy to take any questions, convener. I am going to open the questions. The first one is just regarding the section 104 order, which we had a similar situation in the move-over transactions bill. Can you provide the committee with an update on how discussions between both Scottish and UK Governments are progressing in terms of the possible section 104 order with regards to the application of revisions of the bill to pension scheme trusts? Yes. So far, we have had positive engagement between the officials of the Office of the Advocate of General, the Scotland Office and other UK Government departments around using the section 104 order to apply the bill provisions to pension trusts. A couple of weeks ago, at the convener's group, I had asked the First Minister whether he thinks that some type of protocol regarding the section 104 order would be useful. It is the second bill that this situation has happened, and probably it will not be the last in terms of the SLC bills. I know that this question is not regarding the bill per se, but does he think that some type of protocol would be worth while looking at or considering between both Scottish and UK Governments on section 104 orders? Yes, I think that it could be. I might bring in some of my officials who might have some more detail on that. Michael, do you want to come in? Certainly, I may be aware that you raised the question with the First Minister. I think that the First Minister agreed to take that away and to consider further. Obviously, I think that there will be anything further to see or to add to what the First Minister has already done, but, as I said, I understand that Scottish Government officials will be writing to you on that particular matter. Assuming that the bill has passed through the Parliament, can you provide us with an indication of how long it will take for any associated section 104 order to come into force? What legislative options are there to ensure that the commencement of the act is not delayed and that there will be no black hole or gap in the law that will apply to pension scheme trusts? The Scottish Government's aim is to bring the provisions of the act in the section 104 order for pension trust intervals at the same time. That would have the effect of applying the updated trust law contained in the bill to all types of Scottish trusts at the same time, including Scottish pension trusts. That is a preferred approach, as if it would avoid fragmenting trust law by creating different regimes for pension trusts and other kinds of trusts. Should a 104 order not be forthcoming in time for the commencement of the bill, there are a range of options to ensure that no gap in the law is created for pension trusts. Section 78 and section 80 would allow provisions to be made to keep the Trust Scotland Act 1921 and any other parts of the pre-reform legislation in force for pension trusts for so long as required. That would complicate the legislative landscape and it is not a desirable solution, but it is possible. Another option is to defer commencement of the bill so far as necessary to ensure co-ordination with the section 104. Again, that is not desirable, but it demonstrates that a gap in the law will not be created. If I can move us on to section 75 of the bill to discuss definitions of incapable and mental disorder, the committee has heard a number of views about future-proofing the bill and how it interacts with capacity law in the context of possible reforms stemming from the Scottish mental health review. One suggestion that we have heard is to cross-refer to the Adults with Incapacity Scotland Act 2000 for the definition of incapable rather than the bill having its own very similar definition. Would you agree with that suggestion and if you do feel that it would provide an effective mechanism to allow incapable adults to offer a view on situations that affect them? Or do you think that changes to trust law will still ultimately be required after any reforms to capacity law in any case? The bill uses a familiar definition of incapable, which is very similar but not identical to that found in the Adults with Incapacity Scotland Act 2000. The committee has rightly pointed out that there are significant and far-reaching changes recommended to mental health legislation. I agree that it would be clearly undesirable for the many of incapable in trust law to differ from the usual widely understood definition. I can see merit in making sure that the bill does not diverge from the general law on capacity and that it will keep up pace of any changes in that area. I am willing to work with the committee and the SLC to explore how that can be done. I have asked my officials to look into possible solutions here, whether that might be adopting a definition of incapable that is used in the Adults with Incapacity legislation by conferring a regulation making power on Scottish ministers to alter the definition of incapable in the bill or by some other means. I think that the preferred model, not by everybody but the preferred model that we took in evidence, was that it would simply refer back to the previous act. I just wonder if you can maybe give us a wee bit more information on what would be the advantages and disadvantages from the Government's perspective in regard to using that particular model. I am happy to do so. I think that this is an area that we have yet to explore, so we are not really fully worked out what the advantages and disadvantages might be. Obviously, the Scottish Law Commission, when it was looking at the project, decided to follow closely the model of the ADWI act, the Adults with Incapacity act, but they did not exactly follow it, so there is a slight difference. It is important to discuss this with the SLC to try to understand a bit better the reasons why they took that decision and then begin to work out potential advantages and disadvantages from the possible models that the minister has already set out. Just before we go on to your other question, the evidence that we heard in the committee, the one concern that we did hear quite clearly was obviously that language can change, and it was just about safeguarding language and safeguarding individuals going forward. The point was raised quite strongly by a variety of people giving evidence to the committee so that there can be that future proofing. I am quite sure that the committee would urge the Government to look at that point and pretty much create a lot of haste to be quite asked. Yes, certainly, as the minister has pointed out, this is something that we are willing to work with the committee on and with the SLC on to try and make sure that the definition is appropriate on the bill. If I can move on, Minister, to look at sections 7 and 12 of the bill, again, we have heard evidence, quite all evidence, particularly last week, that it would be very difficult for trustees to reach a decision on whether a particular trustee was incapable and that there was concern about the possibility of abuse that maybe trustees trying to get rid of each other by using this methodology. Do you think now that we should be a statutory procedure for the assessment of a specific trustee's capacity by a third party, such as a medical professional, or are there drawbacks of going down that road? Just on the risks of abuse in section 7, there are a number of safeguards against abuse by the power of trustees. Firstly, a majority of the trustees must agree before a co-trustee can be removed from office. The power cannot be exercised by a minority of trustees or a single trustee acting without the support of a majority. If a trustee abuses the power, then it can be challenged in court. Trustees who wrongfully remove co-trustees may be in breach of their fiduciary duty and may find themselves removed. If they have acted negligently or in bad faith, they could be personally liable for court expenses. My view is that these are sufficient safeguards in the bill and make sure that trustees exercise the power appropriately, but I am going to ask any of my officials if they want to add further to any of the history of this. On the procedure for obtaining a report, I think that you have heard from stakeholders that sometimes when it comes to making decisions, there is a need to move at speed and obtain a report to try to remove an incapable adult so that decisions can be made might delay those kinds of decisions. You also heard from the Law Society, Mr Barr, about the assessment of capacity made by legal professionals and how a report or a medical report should not be the final say. There are issues potentially with that. It is also worth pointing out that the power to remove co-trustees is just one of the powers in the bill for which a trustee can be removed. If there are hard cases where trustees do not think that they are able to make that decision, then there are alternatives that can apply to the court to remove a trustee who is potentially incapable, and that can be made at the sheriff court. In relevant circumstances, there is also the power for beneficiaries to remove a trustee as well. Although the trustees have the power under section 7, it is just one power that can be used to remove a trustee, so there are other options as well. I suppose that the concern that we took in evidence was in regard to just actually knowing, because what we are not looking at is that capacity can come and go for people as well. I think that we are worried that if you have four or five people around the table who have no medical training but do have a concern that that individual might not have capacity for them without any kind of medical knowledge, without any perhaps legal background either, or smaller trusts do not have, but perhaps taking legal advice, you are asking them to take a very large responsibility on board. I suppose that there was real concern that you are putting quite a lot of pressure on volunteers to make medical decisions. I would just come back to the point that the minister has given about safeguards against abuse. I would reiterate my point that the power in section 7 is not mandatory. It does not have to be used. If there are hard cases where the trustees, for instance, do not feel that they are capable of making that decision, they can apply to the court, and the court can make the decision for them. Equally, there is nothing in the bill that would prevent those trustees from seeking a medical report if they wanted to. If that medical report could give them confidence to remove the trustee, then it is entirely open to them. There is nothing in the bill that would prohibit them from doing so. Yes, the problem of that is that you need the consent of the individual to get a medical report. So the trustees would then have to persuade the person who may say that they are actually quite capable of getting that medical report. If they say no, they would have no power to be able to say that further. I would just say again that they do have other options under the bill to remove a trustee. They have the power to apply to the court and also in certain cases beneficiaries have the power to remove a trustee as well. There are ways to remove an incapable trustee that does not necessarily involve co-trustees in making that decision. Okay, if I can just move on then. We were told by the Scottish Law Commission that an agreed trustee who wanted to challenge the decision on their capacity could use common law to go to court, and I think that you have already mentioned that. Do you think that that should now be explicitly in the face of the bill, rather than leaving it to common law? It is something that we could consider. If the committee wants to make a recommendation on that, we are happy to consider it. Ultimately, the Scottish Law Commission did not feel the need to put something on the face of the bill to make that explicit, presumably because it is common law that is well established and there are no problems with the laws that work at the moment. I would say that if the committee wants to make a recommendation about putting it on the face of the bill, it is something that we can consider. I just wanted to take us back briefly to the previous question around the definition of incapable. I remember that the committee had heard another view as well. As I said previously, we had the suggestion that, rather than having a new or similar definition in the bill, the bill would refer to the existing Adults Within Capacity Act, so that, as that is updated, the definition in the bill would automatically be updated. However, there was one potential concern raised with us from Step Scotland, who pointed out that if we tie the definition to that act, the Scottish Law applies to trustees of Scottish trusts, even if they are not Scottish law jurisdiction persons, which means that, if we have the definition at least in this bill, we would be clear that that definition applies to trustees of Scottish trusts. So, I guess I would just be interested to hear from the minister whether that's something you've taken into consideration, whether you think it is something that we should be concerned about, or whether it wouldn't cause issues, and it would be quite straightforward to just link the definition to the existing act. I think this is where I'm willing to work, work together with the committee regarding the incapable definition. The definition in cable in this bill is focused on the decision making abilities of trustees, because ultimately the essence of trusteeship is about making decisions to the benefit of others. The bill does not therefore reflect adults without incapacity legislation where the grounds for assessment in that legislation do not align with the trustees' functions. Instead of the definition of mental disorders based on the definition in England and Wales in section 1 of the Mental Health Act 1983, as amended by the Mental Health Act 2007, and this appears to have been on the basis that the English and Welsh definition of the mental disorder was, at the time, more up-to-date than it used with the Adults in Capacity Scotland Act 2000. So that's where I'm willing to work with the committee moving forward and take on recommendations to define incapacity. But you don't see that as a potential issue that it could then be unclear about who it is that that definition is applying to. I think that that's where we'll work together to make sure that it is clear. Right, okay, thank you. Okay, thank you, Jeremy. Thank you. If we can maybe just move on, if actually, okay minister, some stakeholders have queried how Oscar's powers under the charities legislation in relation to charitable trust interact with the bill's provisions which affect charitable trusts. For example, how does Oscar's powers to appoint interim trustees interact with the court's powers to appoint trustees under section 1 of the trust bill, and if a protector is appointed to a charitable trust under chapter 7 of the bill, how do their powers and duties interact with Oscar's powers to regulate charitable trusts? I wonder if you can maybe offer some explanation on these two specific points. Thank you. Yes, so with the interaction with the charities bill, charity law and trust law are two distinct and well-established areas of Scots law. This point was made separately by Lord Drummond Young and John MacArthur in their evidence to the committee. We know at the moment that 12 per cent of charities registered in Scotland take trust as a legal form, and these charities are subject to both charity law and trust law. But otherwise, a range of other legal forms that charities can take includes companies unincorporated associations and Scottish Charitable Incorporated organisations. For example, charitable companies must comply with the charity law and company law, and trust law is of no relevance to them. Oscar has written to the committee welcoming this bill, and of the trustee's duty of care, for instance, it said that it fits with the standard of care expected of charity trustees in managing the charity. My view is that the two bills complement each other and work well together, and the modernisation of trust law is helpful for charities that take the trust to the legal form. I think that the respect for that doesn't really answer the question, because there is the issue that if Oscar seeks to appoint and the court seeks to appoint, who's got jurisdiction? Did the court overrule Oscar, or did Oscar overrule the courts? Oscar has the powers to appoint the interim charity trustee since 2010. The charity bill simply extends the circumstances in which Oscar can appoint interim charity trustees, and this power is not new. Similarly, the court of session has longstanding powers in trust law to appoint trustees. The power in section 1 of the trust bill simply replaces the court's existing powers to appoint trustees, and that's not new either. For charitable trust, that can be done following an application from Oscar where there is misconduct, or if it's necessary to protect charitable assets. I thought that this power was new to Oscar, but I'll go and check that out. More generally, what do you make of the view of the interaction between the two bills? Do you think that there needs to be any more clarification of how these two bills will work together? Scottish Government officials have been working on those bills and are aware of the provisions in each. Trust law is relevant to charities, only where the charity takes a legal form of a trust. The bill will therefore not impact on all charities, but only certain forms of a charity. Generally, trust law and charity law operate in parallel, and as is the case where charities take other legal forms such as companies, officials will continue to work closely together as both bills progress through Parliament to consider the interaction of both bills moving forward. I think that the appearance in front of the committee on the 23rd of May had Madeleine Sproul of the Church of Scotland Trust and Joan Fraser, the trustee of various trusts. They said that more generally the crossover between the trust legislation and charities legislation is not entirely clear. They thought that it could be specified better in the bill, and in further correspondence to the committee from the SLC, and that was later dated 24 May, the SLC expressed the view that section 70A, as amended by section 8 of the Charities Bill, if passed by Parliament, it was a particular statutory power that would take priority over the general default power of the court in section 1 of the trust bill. Also, we want to suggest that it is worth noting that nowhere in the trust bill is this explicitly stated. I think that we're both well considering those points in terms of if you wanted to write to the committee at some point further. Yes, and I'm happy to take on any recommendations that the committee put forward. I don't know if anyone wants to come in on that point. No, I mean certainly on the point that Mr Balfour asked about the interim trustee, the power of Oscar for trustees, and the power under section 1 of the bill. I think that the Scottish Law Commission laid that out in its letter about the general and the specific. I think that the committee received that maybe last week or the week before, so I think that that sort of lays out on that. But, as the minister has said, it's something that we can write to the committee on. I want to also ask another question in relation to charitable trusts. Some of the legal stakeholders, including the Law Society, have expressed surprise that chapter 5 of the bill, which affects how long trust will last in practice, does not apply to charitable trusts. I just wondered having heard their comments on this topic, do you think that there's a case for reconsidering the exclusion of charitable trusts in the scope of chapter 5? Thank you, Mr Mundell. The trusters who set up public and charitable trusts almost invariably want the benefits to be provided immediately, so I do not think that this exclusion will create any practical difficulties. The SLC was impressed by the evidence of Dr Patrick Ford from the Charity Law Research Unit at the University of Dundee, who pointed out that there was a risk that a trustee might direct long-term accumulations for the fulfilment of grand row charitable purposes, which would not materialise for many years, and such accumulations could fall foul of the charity tests set out in sections 7 and 8 of the Charities and Trustee Investment Scotland Act 2005 and the definition of charitable purposes, which is applicable for the UK tax purposes or provided by the Charities Act 2006. If there was no statutory limit to accumulation, Oscar, the charity regulator in Scotland, would be left to consider every direction or power to accumulate on its own merits under the 2005 act charity test, and the HMRC would have to do the same under UK tax legislation. For clarity, I know that you were not convinced by the evidence that we heard from the Law Society of on Evans or from the firm Turk and Conal. You are not convinced that a change is needed? Not at the moment, but I am happy to take any recommendations that the committee would like to put forward. I also wanted to ask about the balance of powers between the sheriff court and the court of session. I told the committee that it would be helpful if the bill offered more choice for litigants between the court of session and the sheriff court for trust litigation to suit litigants' preferences and circumstances. What is the Scottish Government's view on the strength of those arguments and will the Government consider altering the bill in any way to reflect the evidence that is heard? The SLC consulted on the issue and its allocation of jurisdiction between the courts met with general agreement. Currently, the most trust litigation is conducted through the court of session, while some matters such as appointing and removing trustees can be heard in the sheriff courts. The bill expands the types of cases that can be considered by the sheriff court. Trust litigation is a technical and specialised area requiring considerable expertise at judicial level. Among those who present cases, there is a designate trust judge at the court of session with that level of specialism that is required. The bill takes a balanced approach conferring jurisdiction on the sheriff court where practical but ensuring complex matters are dealt with by a single court with sufficient expertise to ensure consistency in decision making. The SLC looked at other legal systems and found that other countries similarly ensure that trust cases were dealt with by specialist judges with appropriate expertise. Just to push back on that a wee bit, there is a recognition that for many small trusts across Scotland, given the geography, the idea that they would have to spend considerable time and expense in coming to Edinburgh to have their case heard might be a barrier for them. It just was whether, when you looked at any detail in creating different thresholds or looking to expand the choice, because that was something that we have had from evidence we have heard. I guess that the SLC consulted a while ago before the bill was in front of the Parliament, and it would just be whether there is any room for movement on expanding. Happy if the committee would like to write at stage 1 to make recommendations to take them forward, the SLC did discuss? You do not have any strong views of the Government, do you not have any strong views beyond what the SLC have stated? We are going with what the SLC says at this stage, but we are open to consideration. What is the disadvantage of allowing the trustees to make the decision of whether they should go to the court assessment or to the sheriff court? Presumably, the trustees will take legal advice, and the lawyers can advise them on the best option. Rather than having to go down a certain route, what is the disadvantage of letting the actual trust make that decision? The committee will be aware that there is a small number of trust applications that are usually made in Scotland each year. When you start to open up to the sheriff court, you begin to lose the expertise in the bench. There are questions about what sheriff court potentially is, and how the jurisdiction would fall between the sheriff courts. The SLC laid that out in their evidence before the committee. Finally, I would point out that a number of stakeholders who gave evidence to the committee referred to the fees between the courts. I point out that the fees between the sheriff court and the court of session probably are not as big. There is not as big a difference as perhaps people might expect. I think that that came through both from the SLC and from our member of the legal professions as well when they gave evidence. I can just put back on that. The jurisdiction question was answered by the SLC that if there is any question about jurisdiction issues, it comes to Edinburgh Sheriff Court. That is quite clear. It may well be that people want to go down the court of session, but I am just not sure why we do not give the choice. I do not understand why we do not trust solicitors to make that choice. The Edinburgh Sheriff Court was a fallback. That is the final position. If there was no other jurisdiction or no other sheriff court ready to take that jurisdiction, Edinburgh Sheriff Court would be the final court. The SLC considered that matter. It has laid out all its reasons why it opted for this. The expertise and judicial discretion involved a number of those decisions as well. It favoured or felt that the court of session was the best forum in which those cases should be raised. I would also point out that, in a number of other jurisdictions, the higher court, the superior court tends to be the model taken in England and other jurisdictions. I was interested in the point that you make about relatively few cases going forward at the moment. Clearly, the bill envisages a greater role for courts moving forward in the administration of trusts. There will be several new opportunities to involve the court in trust matters. I wonder whether that gives a greater reason to expand out the options for people. I take the point around some of the evidence that we have heard on the court costs. There is certainly a perception out there amongst the public. Many people are involved with trusts at the moment. The sheriff court could be potentially more expensive, so it would just be to understand, I guess, from the minister if the bill goes ahead as planned, what you would do to help to get that information out there on the likely costs involved for people in going to the sheriff court. I do not think that the bill is going to produce much increase in litigation, and it is certainly not in the long term. However, I recognise, with the costs—I am sorry, I do not have the information in front of me, Michael. On costs, on getting the information out, that is something that we can take away and have a look at and consider how that could be done. I am not sure that there is a need for a media campaign or something like that, because I do not think that that would be particularly helpful, but there are obviously Government-run webpages that could potentially be used to bring that issue to people's attention. It may be that someone who is considering litigation and they are involved in trusts will use a search engine to try and find information that could bring up a Government page, and that information could be displayed to them there. It is something that we can consider and write to the committee on. It feeds in, convener, to a wider issue. I will be referenced in other questions later, but just around how people navigate legislation bearing in mind lots of the individuals interacting with it are not going to be legal professionals. It is going to be, again, for many of these smaller trusts and for some charitable trusts. They are the people who put themselves forward to try and do something good for society as a whole. Having clear advice and guidance for them on how legislation affects them would be something worth reflecting on. I would just be to interrogate slightly further on when you say that you do not expect an increase in litigation. Obviously, the bill creates a lot of new opportunities for the courts to get involved in trusts, so it is hard to see how an increase in cases would not be brought. I just wondered what your analysis was based on. Yes, just regarding guidance and communication, I think on styles. Having a statutory style in primary legislation is not necessary or helpful. At times they can become outdated and difficult to update. The 1921 Act contains only two straightforward styles, a form of minute of resignation and a deed of assumption. On guidance in terms of accessibility for lay persons, I am confident that the bill represents a vast improvement on what we currently have under the 1921 Act and other trusts legislation. The Government has set out its priorities for this parliamentary session. Preparing guidance on trusts could affect the delivery of these priorities if we need to take resources away from other areas. If we did a media campaign, I do not think that using the media campaign to communicate what people already expect to happen is an efficient use of public resources. If a media campaign is not something that the Government would consider, would the Government consider writing to each trust after legislation has been passed just to make them aware of the fact that there is new legislation in place and to provide helpful links in any type of correspondence so that the trustees could go and look at that themselves? It is something that could be quite difficult, but I am willing to consider it and speak to SLC and my officials regarding that. I would like to move us on to sections 16 and 17 in relation to trustees' powers of investment. We have heard from Yvonne Evans and others on a suggestion that, because of Scotland's increasing emphasis on net zero goals, section 16 and 17 should be amended to explicitly allow trusts to invest in environmental, social and governance investments, particularly when those might underperform compared to other investments. We have heard mixed views on that. In your view, Minister, does the bill allow trustees to do that already? This is an area that I am willing to work with the committee on moving forward as well. Trustees have given broad investment powers under the bill that do not prohibit taking environmental concerns into account, as stakeholders have already recognised. Trustees are presently required to consider the suitability of proposed investment for the trust, and this is not an instruction to maximise financial return at all costs. For example, the committee has heard that trustees of trusts whose purposes are eradication of poverty would not consider it suitable to invest in tobacco, alcohol or gambling, for example. Ultimately, the investment policy that the trustees should adopt must reflect the purposes of the trust. As I have said, the trust's role and fundamental duty is to implement the trust's purposes, and care has to be needed to ensure that the trustees, when making investment decisions, are not instructed to place their personal values into consideration that might be taken into account. I have heard from the views of the wide range of stakeholders that an express provision would be helpful to make clear, and when assessing the suitability of an investment for a trust, financial returns are not the only consideration that might be taken into account. Environmental and social impact, for example, could also be relevant considerations, and I will consider further what could be done on this issue and look forward to working with the committee and the SLC on this matter as the bill continues to passage through the Parliament. Thank you, so it sounds like you are considering a potential change to the bill along the line suggested. Do you see any policy drawbacks to making that change? No, I do not, but I would have to wait until we move forward with it. Thank you very much, convener. Minister, the legal companies Cameron, McKenna, Nabarro, all-swing LLP, thankfully referred to as CMS, raised a key concern over section 19, as it is currently drafted. They say that this is on nominees and that it might not go far enough in capturing the ways in which trusts are used in the financial services sector. Specifically, CMS said that doubt would remain as to whether trustees can use for one thing nominee custody structures and also sub custodians. The firm said that these structures and arrangements are permitted under financial conduct authorities client assessment rules and that they are commonplace in the financial services sector. Can you confirm whether section 19 allows the use of nominee custody structures and sub custodians? If it does not, do you want to accept CMS's view that there might be risks with the approach or do you have an alternative view to that? I have listened carefully to the evidence given to the committee and it seems helpful if trustees, following rules laid out by the financial conduct authority for the protection of client assets, were found to be liable for the breach of fiduciary duty or otherwise criticised. Those are narrow and technical matters of general trust law that my officials and I need time to consider fully. I agree with Professor Gretton that the issues raised are potentially important and that is why we need to take time to understand the issues before considering how we can best resolve it, so I can confirm that I will write to the committee once I have considered the matters fully. As you said, Professor Gretton said that he thought CMS had raised a potentially significant point about those complex structures and that it is something that requires further looking at anyway, but thank you very much. I want to move on to sections 25 and 26 of the bill. That is the trustees duties to provide information. There has been some concern expressed to the committee about the trustees duties to provide information to beneficiaries, the potential beneficiaries under these two sections. Specifically, concern is that the exact scope of the duties is uncertain, but the duties are potentially too onerous. We heard from Gillespie McAndrew that they had differing information presented to the committee from their response to what they said in the committee. In the committee, they said that the current provisions were better than being too prescriptive, but in the law society, they considered that there were problems with the existing provisions, in particular Arun Barr. On behalf of the society, they commented on the issue of potential beneficiaries. We want to say quite a number of things about it. Having heard the views expressed by stakeholders, do you share any of the concerns about the current drafting? If so, how would the Scottish Government change sections 25 and 26 of the bill to address the concerns that have been raised? With the information duties, there is a balance to be had between the interests of the trustees and of the beneficiaries. Many of the issues that were raised about the burden placed on trustees were also raised when the policy was being developed. I know that the SLC has considered the competing interests at some length in developing these provisions and the information duties in the bill attempt a compromise. I recognise that requiring trustees to inform beneficiaries or potential beneficiaries about the position under a trust could add a burden of work to trustees. Against that, beneficiaries could have a fundamental role in the trust in holding the trustees accountable. They cannot do this if they were not properly informed. My view is that the bill strikes an appropriate balance between the ease of administration for the trustees while also enabling beneficiaries to hold trustees to account. Beyond that, the information duties contained in the bill can be tailored for individual trusts. A trustee is permitted to limit the duty to provide information requested by the beneficiaries subject to certain safeguards, and the bill allows for some flexibility. The SLCC has said that many complaints are made because beneficiaries are not clear on what they have the right to expect or what they do not. We welcome the clear provisions on the duty of trustees to pass information to the beneficiary and what the beneficiary is entitled to expect or to request. My view is that it strikes an appropriate balance, but if the committee has another view and would like to make a recommendation, we will consider that. As has been mentioned earlier, chapter 7 of the bill says that the person setting up a trust can appoint a protector to a trust. Section 493A says that a protector could, for a particular trust, determine the law of the domicile of the trust. It has been spoken about on a number of occasions where trusts are based on an important aspect. What is the precise nature of the power that the Scottish Government intends to confer on protectors here? That is an issue that I am willing to work with the committee moving forward with as well. Under the recognitions of trust acts 1987, a trustor may determine the law which governs a trust set up by them. The proposed example power in the bill would make it clear that the trustor may confer their power to determine the law which governs a trust onto a protector. This may be relevant where no applicable law has been chosen by the trustor and would prevent the need to rely on the default statutory provisions that narrate how the law which governs a trust is to be determined where there is no expense provision. I have listened to the evidence and this appears to be an issue that has been giving the committee some concern. I will work with the committee over the coming months to try and reach an agreement on this particular issue. We have heard different views on the potential scope and effect of the provision and I wonder whether you accept that, if it remains, its drafting needs to be improved, especially because some views from legal academics suggest that the provision simply needs to be removed from the bill altogether. The power would not allow a protector to amend the domicile of the trust, rather the power would allow a protector to determine but not have to change which jurisdiction's law shall be used to determine what the governing law of the trust is according to where a protector determined that the law of domicile of the trust was in Scotland and the domicile of the trust would be determined in accordance with Scott's law, but under Scott's law it may be determined that the trust domicile of the trust is a jurisdiction other than Scotland. I am happy to work forward with the committee on this issue. The drafting, should it need to be improved, you are, as you say, happy to work with the committee as well on that. If I can move on, Minister, to section 61 of the bill, which gives the power to the beneficiaries and others to apply to the court or to the trust purposes of a family trust where there is a material change in circumstances, section 61 sets out the default position that this power cannot be used for 25 years. Most of those expression, but not all, but most expression of view to the committee, for that the 25-year period was too long. How did you get to that view of 25 years and, having heard the evidence, are you persuaded that that is still the right length of period? The Scottish Government's view is that there should be a default time period, which must elaps before the proposed jurisdiction could be exercised. A 25-year limit was chosen because this section is predominantly intended to deal with long-term trusts and the problems that can arise in relation to them. The SOC considered that 25 years provided an easily workable default route, which represented a short generation. A default time limit also helps to avoid the risk of family members who are unhappy and a trust mounting an early application to have its terms altered before any material change of circumstances has occurred. The 25-year limit cannot not be extended by a trustee, but can shorten it or do away with it altogether. I have heard evidence from the stakeholders on that matter, and while some have suggested that 25 years is too long, none have suggested an alternative. I will consider any recommendation that the committee may take in its stage 1 report, including an alternative time limit. Thank you. Step Scotland has also been critical of a further requirement before the court power can be used and that the person who set up the trust must now be dead. Does the Scottish Government still think that this requirement needs to be in section 61? Again, what is the rationale for having that provision? I am going to bring in Michael to this question. On that matter, the Scottish Law Commission considered that in the report, the suggestion about the trust being dead came from standard life, as part of the Scottish Law Commission's consultation. I think that the SLC was impressed with that, which is why they have brought that change in. I think that, as a default position, what we are saying is that the trustee either has to be dead or the 25 years has to have passed, so it is whatever is longer. The idea is that there is a balance between respecting the trustee's wishes and, obviously, the trust property to the beneficiaries. The idea about waiting until the trustee has passed away or waiting 25 years, whatever is longer, is the right balance for that. I appreciate that the bill was drafted by the Scottish Law Commission, but it clearly is now a Government bill, so the Government view is that this is the right thing to do as well. We took the recommendations from the Scottish Law Commission, but if the committee wants to put in suggestions in this stage 1 report, we are happy to consider them and talk to the SLC. Just on this, Varian McGuire of the Enable Trustee Services and Madeleine Sprill of the Church of Scotland Trust both said that they did not work with family trusts, but they thought that the 25 years could be too long for certain groups of beneficiaries, so would it be possible to consider instead of the 25 years to be amended or changed, and also that still could anyway, but further to be a further subsection of the types of different beneficiaries for a timescale to be potentially more relevant to those individual beneficiaries? Yes, so as I said previously in the question, I'll consider any recommendation that the committee might, at stage 1, including alternative time limits. Thank you, convener. We also heard in the same session a kind of concern expressed that if you have this provision in place that people might try and draft around it or put provisions in place to create flexibility to make changes out with that period, minutes seem to be agreed at that session by multiple witnesses that that wouldn't be desirable. Do you take that point on board? Yes, I do, and that's why I'm willing to work with the committee moving forward with the time limit. I'd like to move us on to sections 65 and 66. That relates to expenses of litigation. The law society and some other legal stakeholders who appeared before the committee have raised concerns about the current policy underpinning section 65, which provides principles to determine how legal bills are paid for in trust cases. Specifically, section 65 provides that trustees will be personally liable for these expenses in certain situations, including when the trust fund does not have enough resources to cover them. The law society has said that section 65 will deter people from becoming trustees and may lead trustees to unfavorably settle or to abandon legal proceedings for fear of personal liability, essentially that they'll have to pay out of their own funds. We've also heard from various legal stakeholders that obtaining trustee insurance for personal liability is not straightforward. Having heard that, do you share those concerns about section 65? Currently, it's usually the case that trustees are personal liable to pay litigation expenses to successful opponents to have the right of relief against the trust estate. Section 65 clarifies that the starting point is that a trustee does not incur personal liability and will only do so when certain grounds exist as set out in sections 65, 2 and 65, 3. The court exercises its discretion to make an order for expenses against the trustee personally under one of those grounds. Section 65 achieves what the law society seemed to be asking by making the default position that the trustees are not personally liable for the expenses. There are exceptions to the default position, but those are subject to the court's discretion, which are widely drawn, and this ensures that trustees of underfunded trust, who now unnecessarily litigate and not giving an unfair advantage in litigation proceedings. I don't know if any of my officials want to add anything further. The issue of litigation expenses was consulted on extensively by the Law Commission. The initial consultation on litigation expenses was very similar to the approach that the law society seemed to be asking for, which was a blanket, no personal liability. However, the responses received by the Scottish Law Commission, particularly from the faculty of advocates in step, made them reconsider their original proposal, and that was principally because about the idea of under- or trust-with-insufficient funds litigating. The Scottish Law Commission took on board the Faculty of Advocates and Steps of Views, which is why it has attached a compromise in the bill. As the minister said, the starting point, the initial point, is that trustees do not have personal liability for those expenses, which is exactly what the Law Society wants, but there are exceptions within that provision where the court would make a decision on personal liability. On that basis, the default position, as you have explained, is that individuals would not be personally liable, but there are exceptions. Does that mean that the Government is not considering or proposing amending section 65 in any way? We are happy to listen to any recommendations that the committee may make on that matter. But you are not proposing anything currently, any current changes. I am quite concerned by the Law Society's written submission. I read that before in previous questioning. It describes that as a radical provision. It says that there are real issues. It says that it is not standard. It creates a severe danger of a conflict of interest. The Law Society comments on a wide range of legislation in front of this Parliament, and by their standards, it is pretty strongly worded. There is obviously a very significant stakeholder. I just struggle to get comfortable with the provision in light of concerns that are worded as strongly as that. As drafted, it does not reach a compromise that the Law Society is comfortable with. I would have thought that the Government might want to look at whether the law commission has arrived at the right compromise and whether there is room to find something better. I do not think that that should be left to the committee or otherwise to me. I think that it is an area where the Government could take a more proactive role in trying to find something that all stakeholders can agree with. I am happy to take that into consideration. You are happy to approach the Law Society directly and to see whether there is wording. I will work with officials and report back to the committee. I want to move on to section 67. I hear the faculty of advocates and numerous other legal stakeholders have said that they think that the power in that section of the bill to give direction to the court needs to be much wider than it currently is. Having heard those views, do you agree that the general power to give directions would be a useful power to add to the bill? The SLC is proposed to give effect to its recommendations by amending sections of the court of session act 1988. However, those were repealed back in 2014 around the same time as it published its report on the trust law. It is not our intention to do away with this useful method of trustees to obtain advice on administrative difficulties encountered in a trust. The repealed provisions of the 1988 act were replaced by a much wider and more general power of the court to determine its own procedure, which could include powers to give directions. That is why the relevant section was removed from the SLC's draft bill for introduction. Officials communicated the decision to remove the bill from the SLC's draft bill to the Lord President's private office when the bill was introduced. I have listened to the views of various stakeholders who have given evidence to the committee, particularly the view of the Senators of the College of Justice. I am happy to take this away and consider this further moving forward. I do not want to put words on you a bit, but just for clarity, you think it would be worth restating that within the bill, you are willing to look at that? We will look at it further and we will get back to the committee regarding that. In the evidence, particularly last week, there seemed to be some kind of confusion in relation to very different types of trusts, as we have discussed already. I am just wondering whether the Scottish Law Commission did not consider us, but have the Government considered trying to define a bit clearer what type of trusts are and how we work in practice? We heard evidence from one individual that we had quite a lot of expertise in regard to being a trustee. She was not sure where one of the trusts that she was dealing with at the moment would fit into it. Had there been any thought of trying to define different forms of trusts, if not, maybe explain why not? I am happy to speak to the question. The question goes to the issue of whether the bill attempts a complete codification of trust law and, in particular, whether the bill makes provision on the nature and constitution of trusts, what they are and how they are constituted. That is a subject that the SLC considered when it was developing the project to modernise trust law. There was a paper on the nature and constitution of trusts, but the SLC ultimately, in the report, concluded that that was not an area in which the bill should seek to make provision. The reasons that the SLC gave the report for that were that that was not identified as part of the law, which has been causing problems in practice compared to some of the other areas where the bill does make provision, particularly around the powers and duties of trustees, for example. They were not the issues that the SLC considered required to be remedied most urgently, but it was also considered that that area of law, which is contained in the common law, might not lend itself particularly easily to being codified in a statute. The SLC looked at attempts to undertake that exercise in other jurisdictions, and the conclusion that it ultimately reached was that a codification rarely ends up being comprehensive in any event. Quite an early stage in the programme and the project of developing the bill made that decision about what should be in the bill and what shouldn't. That was essentially the basis on which the bill was developed from quite an early stage. It is not comprehensive in its statement of trust law. I think that the view of the Scottish Government is that that is the right approach, taking account particularly of the fact that there was a significant body of work that went into the development of the report on trust law prior to 2014. I mean, again, what advice do you give to the lady sitting here last week, minister, when she said, I don't know where my trust fits in? What does she do? What do other lay people who are trustees do if there is no legal definition? Well, that's something I'm happy to take away with and look at, providing more information to the committee about and how we can raise more awareness around the different types of trusts. OK, thank you. Thank you. Oh, did you want to come back in? Just briefly, I had planned later to ask about the codification of trust law, whether you'd rather ask now or... Oh, I forgot, I'm just looking at it now. So now it was just to come back further to the points from officials, minister, and it just was whether you think this is a missed opportunity when we've heard from some people who've been in touch with the committee that there could have been a wholesale codification of trust law. Clearly, we haven't had major legislation in this area for a long time. The bills come to the Parliament through the SLC process. I mean, it's unlikely that the Parliament will legislate again on trust on this scale for years, I would imagine. Do you think it's a missed opportunity to do that codification exercise? So complete codification of any area of law is never a straightforward task, and the SLC did consider codification of the law but ultimately rejected it. Its view, as Lord Drummond Young told the committee, was that some areas of the law were better left out of statute, for example the somewhat abstract dual patrimony theory which underpins trusts and the law around express trusts and or implied trusts. The bill does reform all of the parts of Scots trust law, which have been traditionally used to deal with by statute, and it consolidates and modernises nearly all of the statutory trust areas. I'm content that the SLC has, after extensive consideration of the issue, identified the right approach in the bill, focusing on reforming those parts of the law which create problems in practice. I understand the view of a comprehensive codification would make it easier for a lay person to access and understand legislation but, as the SLC suggested in the evidence in other jurisdictions where codification has taken place, the statutory law is seldom absolutely comprehensive. I guess that, just to follow up on that, you don't, you think the benefits don't outweigh the directives and the recommendations of the SLC. More broadly, it's not the Scottish Government's position to move towards as much codification within civil law as possible. Not at this stage now. I move on to the area of succession. Just a couple of weeks ago, we had someone giving evidence who was a sole trustee. If we know that it's under charity law if there's somebody who is in that position, Oscar could step in to assist. In terms of the bill in front of us, do you believe that the bill provides enough safeguards for someone who becomes a sole trustee to a trust? Something may happen to that individual. Clearly, we don't want that to happen, but in terms of going forward, it may end up being a trustee made up of having a situation of actually having no trustee. I'm going to bring in my officials that have worked on the history of this bill. I would say that, in the case of a sole trustee who perhaps becomes incapacitated and is no longer able to look after the trust, there is always the route for someone to apply to the court to add a trustee so that that trustee could then take over the running. That could be made by, for instance, the beneficiary. There would be an avenue for a trustee to be replaced and for the trust administration to continue. Obviously, I should just point out that as well. The beneficiary might not be in a position to make that application. Again, there might be instances where the interest to raise an application is wider than necessarily the beneficiary. For instance, there could be a guardian to the beneficiary. They might be able to raise legal proceedings on their behalf. There could be a parent who would be the legal guardian if it was a child. They could potentially raise proceedings on their behalf as well. That doesn't cover all situations. If I have a trust, I have a physical disability and the person who has a trustee loses capacity for whatever reason. I lose the capacity at the same time. Nobody has been appointed for me. How does the trust run? How does my payment be made? I would say that if the adult becomes incapacitated as well, I don't know if there would be an application for a guardian to then come into that situation. Obviously, if the adult becomes incapacitated, then presumably there would be perhaps family members who would be able to make an application for guardianship or intervention order. Ultimately, the local authority would be able to do that as well. Obviously, once that happens, a potential application to the court could be made as well. Do we think that, as a princeable in law, there should only be ever so trustee in a trust? Have the Government given a view that whatever trust it is, there should be more than one trustee? It wasn't a matter that the SLC consulted? I wasn't asking whether the SLC was asking whether the Scottish Government had a view on that. I mean, I'm happy to take away and consider it. It wasn't something that was raised during the consultation, so it's not something that we've given thought to as part of this bill. Certainly, the individual when they gave evidence to the committee, the trust that they were involved in, there were two trustees, but then it went down to one. So it then created a different dynamic in terms of the discussion that we had in the session. The points that I've raised and also Jeremy have raised, because these were legitimate issues of concern. Obviously, we all want to ensure that the legislation is good. It's also robust. In terms of the management of trusts, the trusts are going to be managed appropriately in addition to any beneficiaries having the access to funds that are going to be required because sometimes bills will have to be paid. If there's only one trustee, then that trustee does lose capacity, then there was that concern of what then happens and who will pay the bills. It's a really valid point that you've raised in this committee and we will go away and we will consider it and get back to the committee on that particular point. I'd like to move us on to the part of the bill that deals with, sorry, with inheritance. Part 2, section 72, relates to the right of a spouse or civil partner to inherit. In relation to this section, a range of stakeholders, including the Law Society, have said that a distinction should be drawn between spouses or civil partners who were actually living with the deceased person at the time of their death and those spouses or civil partners who'd previously separated from the deceased person but not actually divorced or had the partnership dissolved. Having heard the views expressed, are you persuaded that section 72 should be amended to make this distinction? The Scottish Government consulted back in 2016 the changes that were made in the bill received the backing of an overwhelming number of consultees. I understand that the Law Society has made a drafting suggestion that, in its view, would resolve the problem identified and my officials are currently considering it. However, any test could come with its own sets of problems. The committee has heard from stakeholders that certainty is an important feature of Scott's accession law and the provision provides certainty and the definition of separated spouses risks creating some unwelcome uncertainty. Any definition, however remote, some might consider the risk to be risk disinheriting spouses who are only living apart because they are prevented from living together. This might include couples where one of the spouses is in long-term care, for example, or perhaps in prison. Separated spouses can already avoid this problem altogether by either preparing a new will or updating the present will that they have or preparing a separation agreement. The change brought about by the bill is limited to cases where there is no will and where there is no children. The suggested change would be at odds with a position under the law of succession where a will that is not changed following a separation would continue to be given effect up to the party's divorce. There are also unanswered policy questions about the proposed alternative approach. For example, it is not clear whether separated spouses would still inherit some of the estate but only after the deceased parents or siblings or whether the separated spouse should not inherit anything. As I have said, my officials are looking at this at the moment and are considering it. It sounds like there are risks either way, whether a distinction or a definition is made or not. Then it becomes about where that burden should land. I am thinking about what you said about a way to avoid it would be to change the will to update it, which obviously is an administrative burden, but then the alternative is a different group being faced with a burden. I do not know if you like it. I think that these all have to be considered. I think that this is what my officials will be going away considering it carefully and coming forward as we move forward and progress the bill. At this stage, you are not sure which side the balance will be. Okay, thank you. Still under consideration. Okay, thank you, and Bill? Thank you very much, convener. Minister, to me it seemed a bit odd, actually, unlawful killers being allowed to be the executor of an estate and a trust, etc. All sounded a bit odd. However, apparently, this is a circumstance that pertain. Professor Paisley, Professor Gretan, a number of legal professionals and also law firms all added their support for a specific proposal clarifying that an unlawful killer should not be able to be an executor. As I said, Professor Paisley first moved this, but others came on board with them and told the committee that they think that the bill needs amendment to clarify that the law does not permit an unlawful killer to be an executor of the victim's estate. Step Scotland identified section 6 of the bill as potentially helpful in this. However, most of those who gave us evidence have actually said that this is something that needs to be taken forward quite dramatically. Yes, I think that Mr Kidd for that question. This is one that I am very willing to work with the committee on. I am committed to bringing forward reform that would prevent a person convicted of murder from being an executor to their victim's estate. My officials and I will explore what can be done in the context of the bill to ensure that. As the committee is aware, this was not a matter on which the Scottish Law Commission has published recommendations, and therefore the bill as introduced does not mention this particular topic. There were consensus on the matter when the Scottish Government consulted on it in 2019, which is why we are committed to bringing forward reform and the next legislative opportunity. The existing law in this area is not clear. I understand that Professor Paisley has written to the committee with his view, but the leading academic textbook on confirmation appears to take a different view. Depending on questions of scope, the bill could be used to bring the needed clarity, and my officials and I are actively considering this issue. The SLC recently announced in its 11th programme that will look at executory law, and I will consider our approach in light of the announcement. It is important that whatever is taken forward is capable of working in practice because we do not want the situation where the deceased estate cannot be administered or its administration is called into question. That is not to say that trust and successions bill does nothing. Section 6 of the bill will make it more straightforward to remove a murderer from the role of executor and extend the jurisdiction to the share of court. However, I want to reiterate my commitment to bringing forward reforms that would prevent a person convicted of murder from being an executor to their victim's estate. That is very clear, and I am absolutely certain that the committee will be very pleased to work with the Government on that. When somebody dies without leaving a will, the cohabitant has six months to apply to the court in order to exercise the access to anything that is there. We have heard quite a lot of evidence regarding the strict six-month time limit, and it is fair to say that the majority of the evidence that we have heard was concerned at the six-month time limit. Various witnesses suggested that there should be an amendment to the bill to address this with several suggestions as to what the specific nature of any changes should be. Having heard the evidence that the committee has taken, as the minister persuaded that the bill should be amended to change the six-month time limit, or are there any drawbacks to any change in the policy? While the law of succession affects everyone, it can also divide opinion. The committee has heard that, while everyone agrees that the law of succession needs reform, there is no consensus on what those reforms should be. I know that the committee has heard about possible reforms to the financial provision for cohabitants when one partner dies, which the Scottish Government has previously consulted on. Any amendment to timescale brought forward on this issue would need to address the issue of scope, and it would fragment the law in this area. The SLC has recently published a report on financial provision of breakdown of cohabiting relationship otherwise than death, and the Scottish Government will give consideration to a revised definition of cohabitant should extend to situations where her cohabiting relationship ends by the way of death and the timescale included. The Faculty of Advocates, in their response, argued that the power for the court to extend the time limit in an individual case should have been included in the bill, and they did not think that that particular aspect would be controversial. They also suggested that that would help in grieving and vulnerable cohabitants to navigate the family dynamics after a death. On evidence, she suggested that the time limit itself should just be extended to 12 months, and others thought that that would be the case as well. On that matter, as the minister has pointed out, the Scottish Law Commission has taken a look at cohabitation and provision where the relationship breaks down, otherwise than by death. The way that the statute was structured in section 29 of the family law Scotland Act 2006 is based on those provisions. The Scottish Government is considering both the SLC recommendations on cohabitation, otherwise than by death, but the Scottish Government is also considering whether that needs or necessitates a change or updating the law where cohabitation ends by death of the spouse. The Scottish Government is given consideration to the matter and, as the committee will be aware, our programme for government at the beginning of this parliamentary session included the Scottish Government considering implementation of a number of SLC reports, one of those being cohabitation. It is something that we are actively considering. Just before I bring Jeremy, I think that the point regarding grief, obviously, affects everyone differently. The six-month time period for some individuals might just be far too short. The recommendation from the faculty to extend it on an individual case-by-case basis could certainly be a compromise in terms of the bill, but there was the only strong evidence and support for a feel extension to 12 months. You raised some valid points, so we are happy to consider that. What are the key themes of the written responses to the committee's calls for use? Also mentioned by some of the witnesses appearing before the committee, well, value was important that the legislation is accessible as possible to trustees and beneficiaries without legal backgrounds. Most people who do this job do it on a voluntary basis and do not have an understanding of the law. Ideas that the committee received and enhanced flexibility was drafting changes, including improving or adding to definitions in the bill that was already mentioned, Government guidance, a publicity campaign and a style legal documents for the benefit of trust users. In the light of who you use express to the committee, can the minister describe the measures that the Government intends to take to maximise the accessibility of the legislation to its users? In terms of accessibility for lay persons, I am confident that the bill represents a vast improvement on what we currently have under the 1921 act and other trust legislation. Trusts are used in widely varied and ever-changing range of circumstances, producing and maintaining guidance that accommodates the breadth of purposes to which trust is a significant undertaking. The Government has set out its priorities for this parliamentary session. I take on board Mr Valford's points regarding enhancing accessibility to people that are volunteering, but at this stage I think that any sort of campaign regarding that would not be a good use of public resources. Are you not concerned that this will simply put people off becoming trustees if they don't understand how it works, if they've always got to go and consult lawyers, if there's no kind of style document, if the Government's view that a lot of trust is already struggling to find people, are you not concerned that this will simply put people off? What analysis have you done off that situation? I'm not concerned that it's going to put people off, but I am willing to consider that further. I will bring in my officials that might have some history on the work done previously. I will just say that the Scottish Law Commission was very aware of the important role that its trustees play in trust in Scotland. It was certainly one of its primary thoughts when they were writing the report, and I think that it comes through and part of it in their consultation and the report. As the minister has said, we have consideration to it. I think that we've already agreed to write about campaign or litigation in response to Mr Mundell's question, so it's possible that we could write to the committee on that matter and tie them together. Had the Scottish Government done any analysis to look at why few people are coming forward to be trustees and what the reasons people are given were not doing that, have there been any analysis of that? I'm not sure how analysis could be undertaken. Obviously, the late trustees tend to be in smaller trusts between individuals. They're not a public office that's advertised and people sign up to it, so I'm not sure what kind of analysis could be undertaken. There are obviously professional trustees, and in late trustees you're talking about potentially small family trusts where people are all known to each other, the beneficiaries, the trustee. In that analysis, I'm not sure there is a problem. Obviously, the evidence that we've taken says that there is an issue here. I wonder if I can just seek clarification from the minister. You're not intending to do any style documents and you're not intending to add or to take away any definitions at the moment from this stage? No, having a statutory style and primary legislation is not necessary and helpful. As I've said previously, they've become outdated and difficult to update. The original 1921 act only had two straightforward styles. A style may give the lab person a sense of misplaced confidence that their DIY trustee is fit for purpose when it might not be the case, and style books are produced and maintained by professionals based on their experience of contemporary practice. I think that the Scottish Government was right not to attempt to take on that task. Minister, in 2020 the Scottish Government was considering referring a specific project on succession law to the SLC. However, there is no mention of a project looking at the substantive rules of succession law in the commission's 11th programme of law reform. What do you see being the future of succession law reform in Scotland? The evidence that we have heard in this bill has been one of the needs to be a great deal of change. The Scottish Government's commitment to seeking to explore the views of the wider general public regarding interstate succession and we commissioned research from the Scottish Civil Justice Hub, a venture led by the Scottish University School of Law in collaboration with the Scottish Government's civil law and legal systems division. This phase of research has finished and we are awaiting the report on the research findings. This will be published by the hub and when we receive a copy we will consider any next steps on succession law reform. The research will be used to inform any future reform on this matter. However, we have no plans to progress any further primary legislation on reform on fundamental aspects of succession law during the course of this parliamentary session. In terms of that research, would the Scottish Government then send that to the SLC for them to then do additional work, or would that remain my understanding is that it would be sent to the SLC, but I will bring in Michael. I think that there is a decision that would have to be taken on whether that would be referred to the SLC or whether the Scottish Government would do that or take that forward. Obviously, the research is just being completed, so I went for the report and then that will obviously help to inform our next step. Obviously, the Scottish Law Commission has just published the 11th programme, which I think will take them through to 2028. If we refer anything to the Scottish Law Commission on succession law reform, there may or may not be a delay to succession reform, which perhaps might not be the case of the Scottish Government to take it forward. Those are all factors that we would have to consider. I think that it would be useful if the Scottish Government could keep the committee updated. Yes, I would be happy to do so. I will sit in terms of whether the research has been published if the Scottish Government could write to the committee just with the reviews and thoughts and all that. Yes, I would be happy to do so. Any further questions? I thank the minister and the officials for their evidence this morning. The committee may follow-up by letter with any additional questions stemming from today's meeting. I will suspend the meeting briefly to allow the witnesses to leave the room and to take a short comfort break. Agenda item number 3, we are considering an instrument subject to the negative procedure. No points have been raised on SSI 2023-160. Is the committee content with this instrument? That concludes the public part of the meeting.


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