Welcome to the 17th meeting in 2023 of the Delegated Powers and Law Reform Committee. I'd like to remind everyone present to please switch their mobile phones to silent. The first item of business is to decide whether to take items 6, 7 and 8 in private, as the committee contented these items in private. Moving to agenda item number two, we are taking evidence on the trust and succession Scotland bill. Can I welcome Valerie McNiven, a trustee at the Church of Scotland trust? Mike Blair, a solicitor and trustee at Gillespie McAndrew. Joan Fraser, the chair of Charitable Trust at Edinburgh and Lothian Trust Fund, Skewell. Charlie Marshall, the general manager at Wingsham Warriors. Mary Maguire, the director of corporate services at Enable. Chris Sheldon, a trustee at Turkin Connell. Madeline Sprill, a solicitor at the Church of Scotland who is joining us remotely. Ian Hood, a trustee of a private trust who is also joining us remotely. Welcome to you all. Can I remind the witnesses to not worry about turning on the microphones during the session as he is controlled by broadcasting? If you would like to come in on a question, please raise your hand or indicate to the clerks. For the witnesses that are online, please type RTS in the chat function and that there is also no need to answer every question. However, please feel free to follow-up in writing to any question after the meeting if you wish. With that, we will move to the questions that I am going to open this morning. First of all, can you provide us with some background to the trust or trusts with which you have a connection and how you become a trustee or a beneficiary if applicable? For example, what do the trusts that you are involved with aim to do? How many of the trustees, beneficiaries and potential beneficiaries do they have? My attendance today is in capacity as a solicitor and also a trustee and a director of trustee companies, both private and family trusts and Scottish Charitable Trusts. In respect of Scottish Charitable Trusts, a range of different interests of those particular charities and gotten board through professional engagements, through my roles as a solicitor and also through personal interests. In connection with the private and family trusts, those have been in connection with the professional capacity and the beneficiaries of those trusts very considerably can be for specific individuals named individuals within the trusts or for a very broad range of beneficiaries, categories of beneficiaries such as direct descendants. Some of you may not even know that they are potential beneficiaries of discretionary trusts, so that's the range of beneficiaries. The trustees usually range between family members or friends of the settlers or trustees or professional contacts, so acting in a professional capacity and the role of the director of trustee company is one that is familiar with many Scottish solicitors who manage and administrate trusts where, rather than having the solicitor appointed in a personal capacity, it is through a corporate trustee arrangement where the directors of the trustee company are all bound and the trustee company itself is the trustee along with family members. So, as you said, I'm director of corporate services with Enable and I'm also in house council there as well. I primarily came to Enable to work in the trustee service, which is where we look after trusts for beneficiaries who have learning disabilities. Excuse me, we're appointed as effectively the corporate trustee for one to a better description in those trusts and the trusts tend to be established by parents who are looking to provide for some sort of future security for their most likely adult child who has a learning disability. We are also appointed in trusts where awards have been made through the criminal injuries compensation authority, again for vulnerable beneficiaries who are deemed either by the courts or through prior assessment to that to not have the capacity to manage and award themselves and we therefore look after those funds in trust on behalf of the beneficiaries. Our beneficiaries tend to be people who have learning disabilities and generally family siblings, sometimes some other family members as well. The trustees then of those trusts alongside ourselves, there are a few trusts where we act as sole trustee and there are other trusts where we act alongside parents, grandparents, siblings and uncles. It tends to be family members who are not coming to trust to work because they have a particular knowledge or a particular wish to do this. In this particular way, it's more about safeguarding a vulnerable family member and looking to provide for them as best they can. OK, thank you. Thank you. Charlie Marshall, general manager and sole employee of the charity Wings for Warriors. We train physically disabled and medically discharged veterans of all the forces to retrain as airline pilots. The one point that I'm going to bring up at some point is that we are, like a lot of charities, dual registered. We have an Oscar registration and a charities commission number and I will be interested to know what the opinion is about how this proposal will affect those charities who are also based down in England at the same time, so to speak. I'm here in respect of two trusts, I should say. I'm here because I'm chair of Edinburgh and Lothian Trust Fund. That's a grant making trust confined, as you might imagine, to Edinburgh and Lothians. We have three funding streams. First of all, there's a general fund, which is the majority of our fundraising. We give out grants to about between 1,200 individuals in poverty in Edinburgh every year. We also operate something called the Edinburgh Fire Fund, which dates back to the Great Fire of Edinburgh in 1824. It was money that was left over from a public subscription. We use that to provide grants to householders who've had house fire, are on a low income and have no contents insurance. Thirdly, we operate something called the Edinburgh Police Fund, which again is another historic fund in 1892, I think was its origin. It gives out small grants to families in poverty for schoolchildren for the purchase of shoes and jackets. We also give small grants to local voluntary organisations to help with things like volunteering expenses. I'm also a member of something called the New Haven Park Trust, which was established in 1876 when there was a lot of building going on in the north of Edinburgh. Some of the proprietors got together and said that they would like to keep a bit of green space, so they bought something that later became called New Haven Park. It's green space, which is preserved for the amenity of the area. The people who own it, as it were, it's all written into their trustees. There's a question mark about whether they're actually trustees of proprietors, but I don't think that really matters. The reason that I mention it is because I cannot see in any of the documentation a description of a trust that we would fit with, and so it's very hard to see how the legislation would apply. I don't think that we're that unusual. I think that there are other private gardens and parks in Edinburgh dating from about the same time. I don't know how they are operated. I know that Lowman Park is a company, but there are Queen Street gardens and other gardens all around the new town. I'm supposed to have a slight concern that perhaps that kind of trust, where it is a trust, is not covered by this legislation. I'm wearing my solicitor's hat. In my time, I have come across trusts impacting on a whole load of stuff, as in commercial partnerships. People who have set up trusts to manage bits of property intervivors, as the lawyer says, without anybody having died. What raises private purposes trusts? I've at least been involved in one of those having to be changed some years ago. Testamentary trusts are asking when people have died. Charitable trusts and indeed sort of de facto trusts where people have been left managing money for young children under supervision. I'm not coming from the point of view of being a trust lawyer. I'm more coming from the point of view of being somebody who's done a fair slice of that, but it's a sort of general purpose user of trust law in a variety of fields. I'm Valerie McNivon from the Church of Scotland Trust, and I'm a trustee. One of the people online is our secretary, Madeleine, from the law department. The Church of Scotland Trust has two areas of function. One is probably of little interest to this committee today, and that's the part that looks after the Church of Scotland's properties out of Scotland, which is still quite an amount. The part of interest to the committee is the part that makes us the trustees for a miscellaneous selection of third-party trusts. They're very wide and varied. Some of them go back quite a long time. An example might be locally where someone had died and left money for the benefit of the particular church in the area where they lived. The purpose might be further subspecified. Others might be where someone had left money for the provision of education for ministers' children or for provision of housing for retired ministers and their immediate dependence. There's a whole range of trusts with various levels of income and capital that supports the income. As a group, we meet twice a year and we endeavour to have a look at all the trusts over the course of a year on a cyclical basis. I'm Ian Hood and I'm a trustee for a single adult with a learning disability. I'm currently the only trustee of the trust. I took over in 2016 when the previous trustee retired, and the individual concerned has received a significant amount of money in compensation for a particular issue. I manage that money in line with the beneficiary, according to their wishes. It's a discretionary trust. There are some issues in the bill that I'm interested in, particularly as I'm the only beneficiary. Therefore, what does happen if I become incapable of continuing to manage it? The provisions in the bill will talk about them shortly. We'll be of interest, but I am involved in that way. Valerie is giving a very good description of what the Church of Scotland trust does. I'm a solicitor in the law department in the Church of Scotland, and I'm also secretary of the Church of Scotland trust. The only thing I've really added to what Valerie has already said is that, because the Church of Scotland trust and the Church of Scotland are registered with, Oscar, all our third-party trusts are charitable trusts. Ian Hood's point about being the sole trustee hasn't come up thus far in any of the sessions that we've had in the committee. The next question that I'm going to pose probably doesn't include you, Ian, but at the same time, it's actually your situation that clearly will not be unique. I'm keen to get your views on that as well. In terms of the actual bill itself, the bill has got the balance right between the powers given to trustees directly to act by majority and powers where the court authorises a decision about trust. If you propose any changes to the bill and area, what would they be? Start me yourself first, Mike. I reckon that the balance is probably about right from my acquaintance with these trusts. This is not a huge innovation upon quite a lot of what already happens, but it's intended to make it easier. The one thing that did strike me on reading through the papers, and you should maybe ask Chris if I may suggest, knowing when you have recorded that some trustee was not participating or was deemed to be incapable of participation or something like that, for the future record is something that wasn't abundantly clear to me on reading through it. I think that we've probably come on to the aspects of incapacity later, and there are some points that others will probably have on that. The recording of decision making is critical and not necessarily boundary than the legislation, but the requirement for access to information is beginning to be built in and that opens an opportunity for beneficiaries to understand better about aspects of the trust to which they could potentially be entitled. I also agree with Mike in terms of the balance that is broadly right. I think that there is clearly an extension of the jurisdiction of the courts. I would probably echo the point in the submission by the Law Society about ensuring that there is sufficient capacity of the courts to manage that, but I would broadly welcome the balance that is being proposed. There are some aspects that are referred to later on the agenda, which we've come on to, in terms of, for instance, the alteration of trust powers, but nothing specific yet. I think that the balance is good. I think that the balance has been achieved quite well. What was of particular comfort for me is that the trustees that we work with on a day-to-day basis are people who are often in receipt of means-tested state benefits, so to put in place a process that would require multiple times and rounds of visiting court processes, legal fees, etc., that couldn't all necessarily be borne from the trust's own funds would put significant burden on those people. I think that there's a good balance. There's the ability for people to go on and do what they need to do, continue to run the trust, and whenever there's significant issues or difficulties, then there's a process there for them to rely on. Yes. What I would add to what I said earlier is that when I took over in 2016 number two trustees, one of the trustees resigned last year and we had a look at that time for a replacement trustee, and it's not going to be quite difficult to identify somebody who we're willing to do this, and that remains an issue that I haven't been able to find a satisfactory solution for just yet, which trustees have a lot of power. I think that the guidance that's put forward is important, but I simply hold my hands up at this point to say that there is a concern about what happens. I am two months younger than a person that I'm trust for, so we're in a kind of an arms race as to see who will either spend the money first or whether I'll continue to be able to function as a trustee. I'm not completely sure that the bill will help resolve that, but I wonder whether there is an issue about the court being able to appoint all the trustees to help to manage out in these situations. I'm sure that I can't be the only one in this position, because most trusts happen under the wire. They're not necessarily registered anywhere. I agree that the balance seems to be good. We welcome the fact that trustees now have default powers, but we don't have to refer to the 1921 act to check on. Equally, it's good to know that the court can step in where required. I would agree with Ian Hood's point, though. That was something that came up in the Charities Bill, where Oscarers are being given powers to appoint trustees. In general, it can be difficult to identify appropriate trustees and, perhaps, some more clarity around how court would be able to identify these trustees would be useful. If we're talking about the balance of powers and so on, I think that seems about right to me. The one thing that concerns me is section 12.1, which says that a decision binds the trustees only if made by a majority of those for the time being able to make it. To me, a simple majority for any—it doesn't seem to specify what kind of decision, but it could be something very fundamental. In other circumstances, in charity and in corporate law, you need a significant majority, a two-thirds, three-quarters majority, for something that's very significant. I think that that is probably an area that could be strengthened, that it could say something about where needs to define what sort of decision would be regarded as significant enough to require more than a simple majority, but I think that would be a valuable addition. I was expressing skepticism, I'm afraid. Almost all the trusts that I've come across proceed on the basis of simple majority, and they've got odd numbers of trustees, trustees who flew in and out from time to time, and the extra effort involved in trying to work out what majorities might be at which strike me is superfluous, that most of this ought to be covered by the fiduciary duty and the ability of beneficiaries to complain and kick people in the shins if it's not done right. I understand where you're coming from, but I'm not sure it's as major an issue as that. Is the arrangement that applies to charitable trusts? That's required by Oscar. They require a significant, usually two-thirds, or three-quarters, majority. For things like changing your purposes or your constitution, that kind of major decision that affects the nature of the trust quite significantly. You're just a point that Ian raised in terms of the burden on trustees or the perceived burden on trustees or potential trustees, both in private or family trusts and charitable trusts. I think that when the Charities Act came into being, there was a concern that charity trustees might not step forward, but it hasn't actually borne out, but it is an onerous task and responsibility. I think that there needs to be careful management of that, particularly where there is potential disincentive in this bill, where potential exposure to trustees personal patrimony in the event of unnecessary litigation and how that is managed in terms of the messaging to prevent potential trustees from stepping forward to take on the responsibility for fear of personal exposure to risk. Does anyone else like to come in on this question? Incapable trustees. In the ninth of May, we had a session here where legal academics appeared before the committee and offered a more relaxed view of some other legal stakeholders and whether there were risks associated with sections 7 and 12 of the bill for incapable adults. Can I just ask, for those of you who are trustees, would you feel confident in your ability as a trustee in that role to assess whether a fellow trustee is incapable, as required, for example in these sections 7 and 12 of the bill? Would you like input from a doctor, psychologist, mental health officer? Would that be helpful? And should this formally be written into the bill? Can I ask anybody if there are any points on that? Happy to start. Yes, this is actually a situation that we have come across ourselves where we were asked to make that decision. Having no knowledge of the individual personally, having no input in someone's life beyond several times a year, having a discussion about releasing funds to another person, we did not find ourselves in a position where we could make that assessment and we asked for medical support in order to make the decision. I think that that would be useful. I say that as a practicing solicitor, as someone working across trusts on an on-going basis, we did not feel that any person had the ability to make that decision. If, without putting words in your mouth, I am not sure whether you would feel as an individual trustee that you had the knowledge of the situation to make that decision, I think that something more prescriptive in the legislation would be useful. Can I just ask Mary on the back of that, if you do not mind? How legally did you handle that? Did you feel confident in doing that? And were you supported legally in doing that? Yes. We had another trustee, so there was ourselves at Enable and two family member trustees. They were not husband and wife, they were not brother and sister, but they were in-laws, and so the other trustee had also raised concerns. We shared those concerns and it was resolved through the family route where they supported their family member to effectively meet with their GP, and we had an assessment of capacity undertaken. That is very helpful. Anyone else who might have something to say on that matter? If it was written into the bill that Dr Psychologist Mental Health Officer would be the right route to go should it be formally written into the bill, and if not, what other kind of support or further support or input would you want a trustee to have in making decisions such as this? Hearing what Mary said, it does not necessarily have to have anything further written, does it? I think that what might be useful is to cross-reference the Adults and Capacity Act. If there is any situation where you are uncertain about the level of capacity or whether the co-trustee has sufficient capacity, then to follow the routes that are outlined within the Adults and Capacity Act would tie you two together. Sorry if I quite hear that, but I fully understand the system about having trustees who suffer from mental health issues that there should be the power available to have them removed if their actions are contrary to the aims and objectives of the charity. But how does one enforce that? The difficulty of recording this, if you are a body of trustees or a slister advising a body of trustees and they want to argue that two of the people are too decrepit to sensibly contribute what is going on and you have two other trustees who are the active ones, how does that get recorded? If you were the slister, you would look for something from some external source that was any doubt about it, but equally we are accustomed to a situation where you are dealing with, for example, powers of attorney, where people get old, become unable, the family recognises that is the case and no particular formality is required to bring the power of attorney into use to allow somebody to act on the person's behalf. But there is a grey area in there which I think professional practice would need to record as to what it was the prudent thing to do to make sure that you were right in making use of those powers to disregard particular persons' contributions to their trust, although they might still be on the list of trustees. Thanks very much for that, Mike. On the back of what Mary was saying there, of course she's a little bit of a background and so on, but maybe some trusts might not have people in that same position. Do you think therefore that it could be written into the bill about access to doctor, psychologist and mental health officer could be a good thing to go ahead with, just in order to give confidence to those people who were in those positions? Anybody? Sorry. It is a difficult area, potentially asking lay trustees to assess incapacity. It's a subjective test and it's a difficult test to assess. The extent to which evidence or vouching or justification of that assessment and then the recording of that, both for the trustees who or trustee making the decision and also for the alleged incapable trustee and to what extent they have a right to challenge that and to what extent they would have any awareness of the fact that there is a move to remove them on grounds of a subjective test of incapacity and in the event of there being two trustees but one trustee is absent, I think there could be risk and safeguarding would need to be considered as to how that action could be enabled that the present trustee takes a view for vexatious or other personal interests to determine that their co-trustee is incapable and then undertakes actions selling a property, selling investments, taking action to distribute the fund without the awareness of their co-trustee or the ability for that co-trustee to then raise a course action to challenge to which could effectively seek to try and undo any actions undertaken by the trustee. So there's a number of aspects notwithstanding the point made by Mary about the link with the Adults with Incapacity Act test of incapacity. So a number of areas, I'm not sure whether the right answer is to bind into legislation an obligation to seek a medical certificate but I think some area needs further thought on exactly how to manage that so as to protect both the trustees trying to reach the decision and also the trustee who's affected by it. Thank you very much, I think that that was really helpful to get a range of experience and options that might be able to be figured on. That was good. So I'll go back to Charlie because obviously Charlie, when you posed that question a moment ago, do you have any thoughts on Bill's question? If this is written in that a trustee who is under shall we say suspicion of acting in a way not to commensurate with the aims and objectives of the charity, how would he or she be compelled to undertake a medical examination and what form of medical examination should it take? I mean there's a world of difference between a GP, a psychiatrist and a psychologist, they all have different skill sets and I think a question has to be asked as to who is going to enforce it, who's going to decide what form of assessment that trustee is going to go through and does the trustee have the right of appeal and if so how will that appeal be carried out? Okay, I think that that's what they're saying, I mean that hasn't come up, it's certainly in evidence that we'll ask a couple of big sides or so, so that's actually very useful. Sorry, Valerie. I was just going to raise a broader question about process which is in relation to time that all this might take and what would happen if decisions were needed especially with a particularly small trust during the time when there was doubt about the capacity of one or more of the trustees, it begins to get a bit technical to specify this in the bill itself but I just wonder whether there ought to be some provision for some backup regulations as to the process here. Okay, thank you. Sorry, just before I bring you in, Joan, just to let you know that this is Andy, Andy is a parlor photographer, obviously, and takes some photos of the committee taking place today. Okay, joy. I mean section seven says a trustee who is and there are three subsections which are provable facts, convictions and so on, a trustee who's incapable, who makes that decision and I think it would have to be deemed incapable because the trustees can't make a decision about whether somebody's incapable. I haven't ever been involved in a sort of family trust but I've been on lots of boards where there have been trustees who have been there for a very long time, may be very committed to the charity but can't actually fulfil the charitable role and usually it's a question of gradually and gently easing them out but that might not always be possible so I think there does need to be a bit of process around a trustee who is deemed incapable. I don't think you can say that they are incapable, I think there needs to be some sort of assessment of it so that it's evidenced in some way. So just on that, do you think also what Mari suggested regarding the cross-referencing to the Add Ops with Incapacity Act, do you think that would be useful as well? I'm not really familiar with that legislation so I would take Mari's word for it, she's more expert than I but that might be one way of doing it. It might also be worth looking at what happens with charity, law and trustees within capacity. I just wanted to follow up on Valerie's point about what you do in the interim if one or more trustees is potentially under suspicion or investigation for being incapable. I will need to check, I hadn't actually prepared this coming into today so I will check and follow back up. In a number of the trusts that we are enabled as a trustee, we are appointed with trustee sine qua non powers, which effectively makes us the lead trustee. It means that if mum and dad are on holiday and in, I don't know, some remote part of Timbuktu with no access to internet or telephone signal, we can make a decision if we need to because we have a lead trustee power. It's effectively the chair's casting vote in a meeting but we have that, we don't use it unless we absolutely have to, so we confirm that with families whenever the trusts are set up, but in a case of last resort in Dyer straights, we will make a decision on our own if we have to and we will then justify it to the other trustees and explain why. I don't know if there's maybe scope and it would probably be an explanatory note or guidance rather than in the legislation but there are ways to create a lead trustee or to give some sort of power so that in that hiatus you're still able to make decisions and the beneficiary isn't left wanting for any reason. It might be something that we could consider somewhere and I will find the background to it for where it originated from but effectively a trustee with lead powers may be able to fill the gap. Okay thank you, that's it Mike and then Chris and then we'll move on. It's all on the same theme, you also get situations of course where the trustees, there's your dissension amongst the trustees as to what they ought to do for whatever reason and obviously you can have trustees of different ages and if you've got four trustees, two who think one of the two dissenters is not very able and therefore should be disregarded, you get yourself into a stramash and I suspect that the bottom line with all of these things is that you would need to go to court but there's a spectrum of this between somebody who is clearly no longer able which most people would be happy to accept along the same lines as people can't do a part of a tiny and people who you might not think they were thinking straight where they do and how you actually, you know there does not exist a measuring stick for this and because there's not a measuring stick the point that you were making about you know how do we resolve this and how long does it take is occasionally going to be an issue I think. Okay, well thank you Mike and Chris. Just a pointer on Mary's comments, I don't think that Cinequanon trustees are referred to in any aspect in connection with the bill and whether that has any consideration or consequence but going back to the definition of incapable under section 75 which is almost exact to the adults within capacity but I think there is some nuance of difference. I think the concern which I've heard and spoken with others about is the potential for a definition drift between the two acts over time and awareness for individuals trying to interpret under the adults within capacity act seems the most appropriate place for the review of that assessment and recognising that with capacity law reform and Scottish mental health law review the most appropriate place is probably with that side rather than have a separate distinct definition which may be stagnant under the trust bill. Okay, no thank you. Jeremy. Chris Kennedy is absolutely near this one on that, so your view on this would be not to have a definition within this bill but simply refer to back to the adults within capacity so that that definition changes at any point you wouldn't have to then reopen this act you would just refer back to any is that right? That's right, yeah. Okay that's helpful, thank you. Okay, Jeremy. Sorry, sorry, sorry. Ian, I want to come in just on this point and then what would you Ian? You're on mute Ian. Are we back? Yes, that's you. Yeah, so just on this point I was going to raise it later on the powers of the court but I still would prefer mediation having only been involved in a small trust, the small number of trustees in which the trusty resigned because she felt she was incapable of continuing due to personal health reasons meant that for me mediation or other ways of resolving this without getting into a kind of tight legal battle that swallows up trust resources would be some way of doing that and I'd felt that I don't know whether such things are a cast or some other mediation service would be a way of resolving this rather than trying to get into some kind of as some dimension a kind of compulsory inspection of somebody's capability which will just lead to I think quite a difficult situation and obviously you have to cover these grounds within legislation but I didn't really feel there was perhaps enough about mediation in the legislation as it stood and this is one of the issues which could be resolved quite easily in many situations with the chat. Okay, no thank you for that Ian and Jeremy. Thank you for giving it and can I welcome the panel? Can I also just for providing you the right to declare that I am a member of the Church of Scotland but have no financial interest? The bill has new powers for the south court but the predominant power still remains with the court of session. I'm just wondering what are the pros and cons for that and it was suggested to us in previous evidence that the trustees should be able to decide whether they go to the south court or the court of session rather than it being prescribed. I'm just wondering if anyone has a view on that. Okay, yes, Fally. I think one would have to at least think on the question of costs but I've not been able to just do a final check on the relative costs of raising the actual going to the one court or the other but I think if there was an ability of the court that could do it more efficiently and more economically then that's the committee at least to have a look at that. Thank you. Mike. I've been involved in court of session applications to change trusts and you're dealing by and large with the judges there who many of them have probably more acquaintance with this kind of stuff or there are people amongst them who do local sheriffs don't always. In fact it's probably commonplace for sheriffs not to be hugely conversant with this branch of the law because it's not the kind of stuff that comes up. The point of cost is spot on of course the simpler this can be done the easier but in the nature of what you're talking about here where there's an element of contention which is what led to it the first place it's difficult to get past that. The other problem with mediation is to mention is it's a fine thing if you can do it and I've been involved in several but it requires both or all parties to play along and that's why courts are the sort of bottom line if you can't get people to play along which they are open to do just now then you need a max stop. Okay, thank you. Anyone online? Marlon? Ian? No, okay. Chris? I mean I just I would support Valerie and Mike's points there but striking the right balance between having the right expertise in courts but moderating against the cost is a difficult one to strike. I think it's probably struck right in the balance between the sheriff court and court obsession in the bill but there'll be circumstances where it's not right for particular matters. Thank you, Jeremy. Thank you, that's helpful. We've obviously just touched on this and Mike's just touched on that again but we have had evidence in the previous couple of sessions in regard to resolving disputes through mediation or arbitration. Obviously, as we've already heard from Mike, this has to be if everyone's willing to do it. In principle, should it be in the bill or should it simply be something that might be within a kind of encouragement in guidance? I'm not quite sure of the answer to that and I would like to see it encouraged but I'm not sure necessarily of the consequences of enforcing it and getting the ability to compel people to engage in it and to what extent you need to go down that route to enable that and to have to get through that as a barrier in order to then enable you to access courts. For instance, if there had to be a process of mediation or arbitration prior to courts, could that be a barrier to efficiency and speed naturally enabling actions of the trustees which could otherwise be hindered by having to go through an obligatory process? We're just following up on what we've just been talking about or whether it should be in the bill formally that mediation or arbitration should take place before any court action is considered, whether that should be in the bill itself or whether it should maybe be more in the guidance given around a good practice. I think I'd agree with the previous speaker. It would be very difficult to compel people to engage in mediation and therefore if you make it prescriptive in the bill it could lead to delays in getting the decisions made. I do think that mediation should be in the bill. I'd be happy for it being put in as one of the suggestions, not necessarily as preliminary to court action but one of the options that trustees can choose to resolve disputes, whether it's about trustees or about any other decisions that they take. I have to confess that I've never been to a court in my life. I know where many lawyers present who I'm sure could help but the reality is that for many trustees these are areas that we would normally go into and I suspect that having some more low level informal way of resolving things should be included within the bill to allow people to be able to choose a route that can resolve those things easily without getting tied up in co-operation. Most of those things get argued out amongst trustees, be they chargeable, testamentary, with family issues or whatever and decisions that are come to. As the law now stands there's nothing to stop people taking that to mediation if they were so minded and I agree with the point of view that there's no point making compulsory, just as a stage to things doesn't add hugely to the purpose. It's open there if people need it but we do need it maxed out. I think that Mike's can alled in to the point that I was going to make but I think that we've got to be careful if we're dealing here with making public law that we understand the difference between an informal way of settling a dispute and actually mediation which has got certain technicalities about it and I think that if we were to start specifying mediation in the bill then you would be really needing to have some cross-reference to what that really meant and you know actual we've talked about some of the elements of it that needs to be an agreement on both parties but also needs to be a mediator and where's that person going to come from and you know what are the qualifications and appropriateness of that person to deal with the situation. Okay, well thank you. Charlie? I think mediation and medicals are all very well but they do take a lot of time and in many cases money to resolve. I think some of these problems could be stopped by having a fixed tenure for all trustees. Say that it had to be redone every AGM, it would mean that you could get rid of a troublesome trustee at the maximum of a year with no external influence or bills. Okay, no thank you. It was just a reflect on the previous points and not necessarily always for disputes but to recognise the opportunity to petition the court for direction which isn't in the bill present but the opportunity to ask questions, to seek direction I think is a useful mechanism that could be afforded to trustees. The point about mediation or arbitration I think is the same type of encouragement that trustees ought to know and when to take advice, professional or otherwise, and not something necessarily bound into legislation but to be encouraged as part of recognising trustees duties. Okay, thank you and back to Jeremy. Thanks convener. Yeah, I'd like to move us on to section 16 and 17 of the bill which relate to the trustees powers of investment. The committees had a suggestion from the Law Society and from the academic Yvonne Evans that, in view of Scotland's increasing emphasis on net zero goals, section 16 and 17 should be amended to explicitly allow trusts to adopt environmentally friendly investment policies, particularly when these might underperform compared to other investments. So, we're really interested to hear from everyone today on that proposal whether you think an amendment to the bill would help reassure trustees that that kind of investment is allowed or whether you think the current wording is satisfactory. Any experience that you've had in relation to investment decisions would be helpful to hear as well, thank you. Thank you. Good late to start. Okay, Chris. I was attending a webinar recently on looking at the English law position and the Butler's Laws Against Charter Commission which has clarified this area of law in England and the recognition of the evolution and development of impactful acting and purposeful acting of trustees, whether for a private or family or for a charity, and recognising not only the principal action of investing for growth or for yield to maximise the finances of the trust but also to recognise the purpose of the trust, whether that is a family or a charity. I think that it is a useful addition that Yvonne has put forward in terms of clarifying not necessarily just for environmental but social governance or purposeful principles, recognising that there may be a price for those principles in terms of investment or financial gain but recognising in some particular trust that will be appropriate for the nature of the beneficiaries or because of the settlers and their particular wishes. It goes back to the purpose of the trust, I suspect. If the purpose of the trust is focused in that direction, then deciding to put the trust resources in something that pushes it along is fine. If, on the other hand, it is money that you have been told to look after by Grandad for the Grand Showton, without any particular specification, you are at least at some risk of the trustee's second guessing what is good for the country at large versus the people who might be getting the money later in the day. It is not an easy thing to say unless there is some sort of warrant for it in the way in which the trust has been set up in the first place or has indeed been modified over time to set it up in the first place. There is nothing to stop people doing it just now, but there is a balance to be struck as to what we are trying to achieve. What is the aim? Very briefly, I do not think that we should be in the position of trying to tell trustees what they should or should not invest in. Their primary responsibility is to get as much as they can for the charity, regardless of what might or might not be perceived to be the common will. I suspect that the Church of Scotland meeting a general assembly this week will, from time to time, touch on the issue. It is probably relevant to think that the debate there is likely to be very wide. What is important is that you have flexibility and breadth in the powers without being too specific. It seems to me that the wording of section 17 is at the moment pretty broad, and perhaps to try and tie it down will just lead to further difficulties on how far you go. My area of knowledge is largely in relation to charitable trusts, where Oscar, the charity regulator, has issued guidance to charitable trusts about investment and balancing the aim of trying to maximise your income so that you can maximise your grant making in accordance with your purposes, but balancing that against ethical, social and governance concerns. Most charitable trusts nowadays have an ethical investment policy or an ESG policy, so that could be something. It is not the case that the duty of a trustee is certainly in charitable trusts is to maximise the gain. They have got to balance that. What are your charitable purposes? For example, in Edward Lothian Trust Fund, because our business is all about helping people in poverty, we do not invest in alcohol, tobacco and various other things, gambling, which are areas of harm, in particular for people in poverty. I do not see that there is a difficulty in saying that trustees of any kind should balance the objectives of the trust against the ethical dimension to invest in alcohol. It was just to follow up on that point where the trustees might feel exposed, where they take a particular view, but because of that view taken for the social purpose, there is an under performance or even a loss as a result of their actions. That is where there needs to be afforded some protection to trustees in connection with that slight clarification of the bill provision to empower the trustees to be able to make such impact or social or ESG type investments, knowing that they would not be vulnerable to claim or challenge in the event that such investment policy was underperforming or even incurring a loss for the basis of making those impactful decisions. Anyone online? Just to agree with the points that have already been made, it is difficult to make a positive direction in the bill in this way. Anything that can clarify that trustees will not be penalised for having such an investment strategy would be a good thing to protect trustees' interests. I was interested in sections 25 and 26 of the bill. There has been some concern expressed to the committee about trustees' duties to provide information to beneficiaries and potential beneficiaries under those sections specifically that they are too on risk and that the extent of the duties are uncertain. I would be interested if I wanted to share your views on those proposals, particularly if you have concerns, and I would be interested in how you would change sections 25 and 26 of the bill to address those concerns. I move my head back to stake. One comes across this occasionally where you have got different attitudes between trustees and potential beneficiaries. Slisters on the board who are involved in private practice will occasionally come across this, I suppose, where you hear of people not letting on just exactly what the trust says or does or refusing to provide information for beneficiaries or, indeed, potential beneficiaries. Sometimes that is just thrawnness or descent on the part of the particular trustees who do not think that it is any particular business of people whom they view as being remote connections to the trust to be provided with information. Equally, there can be other situations where it is proper that people should know what is going on. Testamentary trusts, for example, when somebody dies and money has to be managed for some years, perhaps until children grow up, if there is not reasonable clarity as to what is going on, then people are clearly going to be disadvantaged because they are entitled to conduct their affairs in the knowledge of where they stand. I have no magic test to say when you have got to disclose stuff and when not, but the difficulties tend to arise when people are trying to keep it too close to their chest, as I have often thought in practice unnecessarily, but that is on the eye of the holder. That is probably a quite specific example, but it might give some context of why I think it should be a trustee duty to provide information on requests. You take the example of a discretionary trust that only has one sole beneficiary, so without the class of beneficiaries you have an absolute beneficiary who is also in receipt of means-tested state benefits and has a duty to provide information on their entire estate, to HMRC and assessment of their benefits, or to local authority at whatever point they need the information to withhold the information from HMRC or local authority when going through that assessment for state benefits will ultimately prejudice the individual. If they do not have the information from the trustees to be able to provide with the trustees and the knowledge that that person has the absolute beneficiary, there is no other beneficiary potentially to that trust, then not having that information ultimately hurts the beneficiary of the trust who, in the sorts of discretionary trusts that enable works with, that is the ultimate goal is to protect the beneficiary not to not to cause them financial harm or hardship by withholding information. Don't think I've got very much to contribute on this one, because one point I would make is that in relation to the trusts that Church of Scotland trusts concerned with, the actual beneficiaries at the end of the day are really often so broad that we wouldn't really know who they were. The sort of examples I gave in my introduction about perhaps children of clergy or relation to housing, so I think we just have to be careful that we haven't specified in a way that one could have a challenge from somebody that we didn't think was a beneficiary, but they became aware and thought perhaps they were missing out on something, so I don't think I've got really much to say on the provisions themselves. Okay, well thank you. So just from my beneficiary's perspective, can I ask Charlie for your view on how easy it is to actually access information about trusts that you have an interest in? I'm sorry, I missed a question. Sure, so from my beneficiary's perspective, can I ask you for your view on how easy it is to access information about trusts that you may have an interest in? I'm not going to comment any further on that one, if you don't mind. No bother. Okay, thank you. Oliver, I'm sorry, Chris. The opposite effect of Mary's comment, where you have a trust with a very broad range of potential beneficiaries and understanding the scope of likelihood of a potential beneficiary and how that is borne out and what actions trustees might then take to exclude individuals who are seeking to find information about a trust in which they are unlikely that they would ever receive a beneficial interest to understand how that might be monitored, but otherwise I didn't have any other comments that have already been made in previous submissions, particularly through the law society. Okay, thank you. Oliver. So I'll zoom in on section 61 of the bill, which gives power to the beneficiaries and others to apply to the court to alter the trust purpose of a family trust where there's been a material change in circumstances. Section 61 sets out the default position that this power cannot be used for 25 years. I'd be interested to know, and I was at the committee of interest to know if you think that this is the correct approach having this 25-year restriction and to understand your reasoning. So I used to work with the family trusts, but that was about maybe about 15 years ago, so I'm actually a trust that I tend to work in are slightly different now, but with the trusts that we work with and the beneficiaries and the families that we work with, there are people in and around the trustees and beneficiaries who are living with relatively tight constraints. I think that 25 years for that group of people would be quite difficult to deal with. If there's money in the trust, it has very, very bespoken, very, very restricted purposes, and the family falls on hardship more widely and is unable to access that money beyond very specific purposes for 25 years would be quite, I think, challenging. Obviously, there are trusts at the other end of the spectrum that that wouldn't be an issue for. Okay, thank you. Ian or Madeline online. It's not really an area that I work in at all because it also only relates to private trusts, but I would agree with what Manny has said that 25 years could be too long for certain groups of beneficiaries. I've been involved in varying trusts usually to get out of a thing which had not thought to be a problem in 1980 but was going to be a problem in 2020, and I suspect, Chris, that you've seen similar sort of stuff. This is a bit of a new exploration of changing around private trusts like this, and I don't claim to have read, I haven't read fully into this report of a law fiction on the subject, but the idea that you do need to change it from time to time and to redirect what's happening seems to me to be very necessary. I suppose you could make it that normally 25 years on special calls shown you could go to the court or something like that, but the idea I suppose is that people can't just constantly mess around with something that was set up by the guy who set it up in the first place just because they changed their mind in 5, 10 or 12 years time. I agree with Mike's point there. I think that the bar should be set appropriately high to override the wishes of the settler in determining the trust purposes and the trust arrangements. I'm not sure whether the time limit is necessarily the right factor for that, so I'd perhaps see not necessarily as entirely appropriate that 25-year period or whether there ought to be a period at all. I understand that it is one potential measure in putting in place a high bar, potentially as a generational move. Evolutionary development of the trust and circumstances have changed over that period of time, but I'm not entirely convinced by the setting of a provision of time, particularly as long as 25 years, so it does seem too long. I understand that then. If it's not a mechanism, what would you like to see? If it is on the grounds of circumstantial change, I would expect to see it as a substantial shift deviation from the settler's wishes in the extent of which the provision of trust has been put in place in the first place and to set out a case as to why it is appropriate that, in a similar way that you petitioned the Court of Session as to why a variation is justified and rationalised, why it should be accepted, petition put forward as to what are the substantial changes and to what extent it doesn't disbenefit the individuals and why it's necessary, not necessarily set out as a, you have to get beyond a 25-year period before that opportunity presents itself. In the case of the trust that I'm involved with, the settler is the beneficiary who, when he received the compensation, decided to place it in a trust and help him to manage the money. In that situation, I'm sure that not all settlers are deceased and may have a continuing viewpoint. While the trust is set up, there may be a point that I see comes in the future when the current beneficiary may choose to seek an amendment in the trust, and I think that there should be an option for that. A 25-year period from when the trust was set up is actually not that far from now, but 25 years from now might be far too long. I mean, I do think that an earlier date as an option would be helpful in some situations. Okay, thank you. Oliver? I guess it touches on that point, but it's a bit more broad. We heard on the 9th of May from Yvonne Evans and Professor Gritton that, in practice, a legal academic would just draft around the 25-year provision. I'm sorry, I mean, maybe for Chris and Mike, but do you think that we're worrying probably too much about this and that your most trust would be drafted to give some leeway in terms of purpose? I'm not sure that would be a helpful consequence, but the trusters or settlers then needed to reflect on the fact that they couldn't anticipate future change and evolution of circumstances because they're anticipating if they are at a particular stage in their life and the trust to exist beyond them and an inability of the trustees to adjust because circumstances have changed. Some settlers would not wish any circumstantial change to affect the trust terms, but looking to modernise and this bill does that, I think that you'd want to be a situation where a settler could be aware of the fact that this provision existed, but if there wasn't awareness that it was a 25-year period, I think that you might then see drafting around and therefore a broadening of trust purposes was not necessarily what the settler wants to put in place because they're being forced to make something much more broad range than they anticipate. For instance, if there are no further family beneficiaries, direct descendants because they pass away, it might be conceived that the settler would wish to see charities benefit and so if there's not a, for instance, power to add beneficiaries of a charitable nature, then the trustees might seek a petition to include charitable beneficiaries, but it wouldn't otherwise be the mind of the settler to include charitable beneficiaries from the instance because of the fact that it's a trust designed to be for family members or direct descendants, so I think that you would see an unnecessary broadening of trust purposes from the outset if there was a barrier of a 25-year period. Potentially, yes, there would be, but I'm not sure necessarily for positive consequence. I know I don't have anything to add from what Patricia said, thank you. I'd like to move us on to section 65 and 66 in the bill, which relates to expenses of litigation. The committee has heard from the Law Society and some other legal stakeholders who are concerned about the current policy underpinning section 65, which provides principles to determine how legal bills are paid for in trust cases. Specifically, it provides that trustees will be personally liable for these expenses in certain situations, including when the trust fund doesn't have enough resources to cover them. The Law Society thinks that section 65 will deter people from becoming trustees and may lead trustees to unfavourably settle or abandon legal proceedings for fear of personal liability. We're keen to hear whether you share these concerns or whether you can offer us any reassurance and a sort of follow-up question would be whether you think the availability of insurance helps mitigate the risks identified by the Law Society. I think that you've stated pretty clearly that we've heard already that it's not always easy to find trustees and anything that's seen as a disincentive would clearly make matters worse. I think that there is a real issue here. The question of insurance is covered elsewhere in the bill. I think that, in principle, it's a mitigation for trustees. However, I've been involved in another trust where we have actually got insurance, although our risks are very low. However, I think that I've heard elsewhere that it's not always easy to find such insurance, so one has to be balanced on the other. I think that there is a risk to disincentivise trustees. I think that that could be mitigated by insurance if you could find the right policy. Gillespie McAndrewd said that it was dangerous to rely on insurance. As you were saying, getting a hold of insurance, it can't be an insurance against you doing something daft as a trustee, because you shouldn't be doing it in the first place. Is insurance against some daft claim against you? Well, that's probably much more desirable, and indeed that's what a lot of domestic insurance contains. I've no direct experience with going around looking for such insurance, I should say. The business about trustees' personal liability has got to be two. The question, I suppose, is if it's the trustees who are engaging in some dispute which they sensibly ought not to do, then why shouldn't they be personally sticking their necks out? If, on the other hand, it's something that's come to them, that's a different situation entirely, and it puts them in an invidious position of having to either roll over because they haven't got the resources to defend it or stick their necks out. Thank you. Madeline. From a sort of practical point of view that I was asked to look into obtaining trustee indemnity insurance for the Church of Scotland Trust. The Church of Scotland has its own insurance services company and they have been unable to source appropriate trustee indemnity insurance both for the Church of Scotland Trust and for the Housing and Loan Fund trustees. Just something to bear in mind that, although it would mitigate some of the provisions in the bill, it's not altogether easy to find. I would agree that it's not easy to find, but there are one or two companies that do trustee indemnity insurance, so maybe there are differences with the Church of Scotland that makes these policies not appropriate for you, but we certainly have at the end below the interest fund we have trustee indemnity insurance. Although Mike is absolutely right, it doesn't ensure you against failing to exercise your duties properly. If you act unlawfully then the policy is null and void, but if you, through no fault of your own, end up in the wrong end of some sort of lawsuit, then the indemnity insurance will cover you. Thank you, Mary. I think that this is one of the things that we say that are the dichotomy between professional trustees and personal trustees, so we obviously have various businesses insurance insurances which cover off liabilities for certain things. Individuals potentially don't have the means or the ability to source the insurance. I don't know quite how it would slot in, but insurance premiums, for example, could possibly be borne out of trustee dates, but beyond that, if there is some sort of funding available, whether it's legal aid funding, for example, but some sort of eligibility towards contribution of cost, because I think back to the point that Iain had made earlier on, this is something that would ultimately, excuse me, put people off from being trustees and with a dearth of volunteers coming forward in some areas. It would be quite a significant barrier to know that, even if you have insurance, it doesn't necessarily protect against all of your actions, and you're effectively personally liable for certain things simply because you've come forward to help other people. I agree with that. It could be an unwelcome headline on which a disincentive for potential volunteers as trustees is, in most cases, an unpaid office. It's responsible. As I mentioned at the outset, it's a high and onerous obligation to undertake the role. I think that the potential influence on the acts of litigation to defend the acclaim are unfavourable. The aspects relating to insurance have already been mentioned. It depends only on the market being available for that. I would share the concerns of the law society contribution. I should mention that I sat on the trust and successional committee, but I wasn't directly involved in the contribution made, but I would share that view. I thank all the guests. I think they've provided some really interesting aspects of evidence that I think will help the bill going forward. However, Christmas has come in, so no, it's not actually. There may be omissions to the bill that people have views on. Is there any comments that anyone would have about what they would like to have seen in part 1 of the bill that hasn't been brought forward so far? Anything that you think should be included? I think that I'll turn back to something that we did touch on before, and that was the role of the court. I suppose that there's just a bit of a concern that there's not any obvious way through the bill for a public trust to seek a variation short of going to the court of session, which sometimes we simply have to do. Obviously, there's a balance to be struck here. You don't want to be allowing trustees to vary at will. However, it is perhaps something that we'll never get another chance, three-way, to look at this, so it's taken 102 years to get from where we are to where we are now. This is the one and only, so perhaps just put a marker down there. I'm just interested in what way do you see that happening, if I can ask that away. Obviously, if you do, and what you do go to the court of session, what way would you see around that, without giving the trustees too much power to do anything? I think that that's the difficulty. Perhaps in the miscellaneous trusts that I'm concerned with, there is sometimes an opportunity to move from one specification to another. For example, if money was left for the benefit of a particular church and that church no longer existed, there may be a way of just moving to something that's equally acceptable, but there are boundaries to be sought. Boundaries to be set. I agree that it's difficult. However, it's perhaps, I'm sure, legal wording can be found to create some kind of opportunity, but with some checks and balances built in to prevent the trustees just veering at will whenever they come across an issue or a difficulty. One was just to come back on the last issue about liability insurance, is that I don't have any as a private trustee. I can see a situation if, on the death of the beneficiary, the powers that we have as a trustee to decide whether money goes maybe challengeable or maybe challenged by relatives. I certainly wasn't really aware that it was a personal liability before I'd read the trust, the bill. Obviously, that's an area of concern for me now. Never mind anybody who might become a trustee in the future. The second point that I wanted to raise about what I thought might have been in the bill was about whether or not the trust should be registered with a court when they're set up. My understanding is that trusts don't have to be registered anywhere in it. Trusts aren't known about, except from the people that hold them. I could be mistaken on that. A power of attorney can be written up by anybody but needs to be registered with a court for it to then take effect. I wonder whether or not a trust should at least have some kind of opportunity for public acknowledgement of their existence as something that could be included in the bill. I don't think that I know enough about this to comment on or usefully on emissions. It's not enough in my field. The big concern is that the bill doesn't really fulfil the expectations that are set out in the policy memorandum. It says how important it is that lay trustees are able to understand the legislation. It also says that the aim of the bill is to ensure that the law of the trust is clear and coherent. I don't think that it does that as a lay person. There are numerous different kinds of trusts. Nowhere does it say that this is what this kind of trust is. There are commercial trusts, charitable trusts, private purpose trusts and public trusts. Somewhere in the legislation or the explanatory notes, there needs to be an explanation of what those different things are. I think that the interface with charitable trusts could be improved. The discussion today has made me feel that even more strongly. The explanatory note says that the bill doesn't apply to charitable trusts except when it does. It doesn't go on to say which sections apply to which kinds of trusts. I just found that, as a non-lawyer, it was very confusing in that respect. I should be able to read the legislation and say that that would apply to me and that would apply to that trust. I don't think that the legislation does that. I think that more clarity and more coherence and a better interface with charitable trust law would be very welcome. The first is linked to the sort of lead trustee part, which I think could possibly try to resolve some mediation type situations before it gets to it. The second is more often than not, when we see trusts coming through, there is no reference to the underlying legislation. Your point just to reinforce my thinking on that, Ian, is that for particularly individual trustees or people who are a trustee on a single trust for a family member, being directed to the underlying legislation might resolve a lot of issues before it comes to a head that you would be able to go back. Obviously, the explanatory notes are more useful than perhaps the actual legislation, but it is an underlying direction where to go. Picking up on Joan's point, the clarity, but particularly on the charity's piece, we have Charity's Regulation Administration's Scotland Bill coming through simultaneously, and through that opportunity for Oscar to have the power to appoint interim trustees. Would the definition of trustee under this bill include interim trustees, the point that Mary made about the Sinequant non-trustee or a lead trustee, and also what I couldn't see was a default power of trustees to add a trustee or trustee? Thank you. Part of what Joan has said, the crossover between legislation that affects charitable trusts and the legislation in the trust bill, the crossover between charities and other trusts is not entirely clear, and I think that could be specified in the bill better. There's also no definition of public trust given in the bill, which I think would be helpful to provide. So I know that Valery has to leave at 11.30. Valery, is there anything that you would like to put on the record before you? No, I think that last opportunity completed my desire to come and intervene. I just hope that my comments have been useful to the committee today. No, they certainly have, so thank you very much. Quick question 3. From Chris's comment there, I have a privilege of sitting on the other committee which is looking at the charity bill as well, so you've mentioned that one area. Is there anything else that you think needs to be clarified between the two bills at this stage? Not clarified as such, but there are aspects of the accumulation of income that I think has probably been raised in other contributions as to why the charitable trusts are excluded, but whether that is still appropriate to exclude them, but not aware of any other misalignments. My second quick side. I really wanted to go back to Joan. I was interested in your initial opening statement about some trusts not being covered in this bill and you mentioned things like some of the gardens around Edinburgh. Can you give me a bit more of why you don't think they're included? I would say that, as a layperson, without the definitions of what the different kinds of trusts are, and there are people here who are much more expert than me who could list them, but there seem to be half a dozen different kinds of trusts, but no indication of how you would decide if you were involved with a trust, which heading it fell under, which type of trust it was. Therefore, it's impossible for me to read this bill to say that the park trust that I'm involved with is, I thought, oh, it must be a private purpose trust, but I don't think it is. I don't know what it is. My point about other gardens and so on in Edinburgh is that I know that I suspect that, in the late 19th century, it was a thing that people did if they could afford it. They bought up bits of land, so it would be green space for their private use in the city, and I think that it might be useful to explore what is the nature of that arrangement. Some of them will be trusts, I think. I know that one is a company and has been since the very beginning at the end of the 19th century, but there might be other arrangements and they might not quite fit with the legislation. If that is, as Valerie said, 102 years on, we're overhauling the legislation, then we wouldn't want to have to wait another 102 years to include something that we could cover now. Does that answer your question? I wonder if we've got a few lawyers on this table. If they want to comment on that, is there a concern that we should have as a committee? I think that in some historical trusts, whether they are generally trusts or unincorporated associations by a committee that's turned into a group of members that has a board or a governing arrangement and lack of certainty around clarification of legal status, that's been helped through the creation of skiers and many unincorporated associations. Having not had that clarity previously, they may not have had a written constitution or may have had it on an A4 bit of paper, but looking to formalise their arrangements and to create some protection for them as individuals, as charity trustees, to move to a skeo but not necessarily the same type of recognition on conversion of unincorporated association to a trust and some of these historic arrangements, it can be quite nuanced as to what you're actually dealing with. The New Haven Park trust that I'm thinking about was explored some time ago about becoming a skeo or a registering, but we don't have a charitable purpose, so we don't qualify as a charity. We do provide services, but we're not a charitable trust, so that wouldn't help us. Mike. For what it's worth, you sound like a private purpose trust, as far as I read this stuff. Thank you for that free legal advice. But let me throw back from that being too definitive because as I said at the start, trust laws such as not my primary stuff, I just come across it in a number of other conditions. There are a whole variety of odd arrangements out there in the country one way or the next. I was once asked to a point upon a very peculiar arrangement by which a piece of ground was sort of owned by the people who owned the adjacent fuse, but it wasn't at all obvious what it was, and since a professor at Dundee University had me involved, I hesitated to dig too deep. The problem with trying to categorise them is that you will end up with fuzzy edges at the edges of the categories, and a lot of what's in here, I think, is I haven't done it well enough to understand how the definitions of this flow through into it, and I suspect that it may actually be possibly more thought through than I presently understand. I have to confess that this isn't my area of expertise. Beyond the realms of disability, vulnerable persons and disabled trusts, I'm now too far removed from it in practice to be able to safely give you a view. Okay, thank you. Yeah, well, you're nearly there, so don't worry about it, but you were, of course, invited here because of your role in relation to trusts, even if it's not always entirely direct. However, you'll be aware that part two of this bill is on succession law, and we've heard evidence from others about this, including to do with section 72 of the bill, where the distinction people believe should be made between spouses and civil partners living with the deceased at the time of their death and spouses and civil partners who were separate from the deceased at that time and with no intention of continuing in a relationship. That's an example of the kind of succession law debate that we've been having. Is there anything in this element of the bill that you have, anything that you might want to mention? Okay, Mari. The only thing that crossed my mind is effectively partners who don't live together but long-term relationships. People who are in relationships for 10, 20 years plus, but for whatever reason choose not to live together aren't covered, and there's no protection there for either of those people necessarily. I know it's quite unconventional, but I'm aware of a life situation where someone has passed away relationship for over 20 years, and they don't live together and are not married. No, no, it has been mentioned before, but thank you for that here. Thank you. Mike. It's an example of the inevitable fuzzy edges of trying to do these things. I inclined to the view that if you make the rules clear, people can work around them. People don't always work around them, but it's probably at least as good a legislative solution as leaving a bit of, well, maybe they've moved out, how long have they moved out for, how do you weigh all that up? You folks' choice, I think, as to how you play this in terms of the legislation, but there is a merit in trying to be clear about it and not make too many allowances for the cases in between times, because let's face it, people can always do their will to get around most of these things. Chris? It's a bit like the subjective test of incapacity. Can there be a subjective test of was there a prospective reconciliation as a genuine couple at the point of death, whether or not they couple cohabited? It's difficult. I've only ever had one case like this where an individual passed away and had actually filed for divorce, but had not proceeded to complete it prior to death. I recognise it as an area that needs address, but how to build in the definition of separation is not straightforward. Joan? Madeline? This is really not my area of professional expertise at all, but the proposals seem to be fairly sensible and in line with public expectation. Although I think that it is very subjective. I have no comment on this. So just before we do close the session, is there anything that anyone would like to highlight that they possibly haven't had a chance to do so thus far? I'm sorry. Nothing from Mike. It was just one point, which was an agenda that we haven't got to, which is the protectors' power relating to domicile. Just to make the point that I couldn't understand the justification for the protectors' ability to move the domicile of a Scots trust. Madeline? No, nothing further. And Ian? No, nothing further, thanks very much. I would like to also thank everyone for their contribution today. I've also written submissions as well as they've come into the committee. Now that today is so over a minute, if there is anything that you do think about over the course of the next few days or so, that you think would be useful to contact the committee on, please do so, because we are looking for anything that's going to help in terms of the process of the building through the parliamentary process. Once we'll thank you very much once again for all your helpful evidence and the committee may fall up by letter with any additional questions stemming from today's meeting. With that, I will suspend the meeting to allow the witnesses to leave the room and also Blue Jeans. Thank you very much.


Rwy'n credu'r ddweud i ddim yn yourbluadu i ddeitu cyrraffedd mewn 2015, ac mae'n rhaid i ddim yn meddwl i ddim yn dweud ychydig iawn eu cyd-teimlo iddyn nhw i ddim yn eu cyfweld. Rydw i ddim yn ddweud i ddim yn meddwl i ddim yn ei gweithio ddoch i ddim yn eitem ni am y parhau o'r llesiau viaddyn nhw i ddim yn ddiddordeb ni i ddim yn ddigwydd yn cyju'r llesiau, ac mae'n ddigwethaf i ddim yn dweud i gael i ddim yn cyfgondodau'r dyma. Gordon MacDonald has given his apologies for this morning, and I welcome James Dornan, who is here as his substitute. I can also welcome James Brown, who is one of our modern apprenticeships, who has joined the education committee. Welcome, James. Our first item on the agenda this morning is to take evidence on the Public Records Scotland Act 2011, authorities amendment order 2015. I welcome Fiona Hyslop, the Cabinet Secretary for Culture, Europe and External Affairs and her supporting officials from the Scottish Government. After we have taken evidence on the instrument, we will debate the motion in the name of the cabinet secretary. At item 2, officials are not permitted to contribute to that formal debate. I invite the cabinet secretary to make any opening remarks. The purpose of the draft order before the committee today is to amend the schedule to the Public Records Scotland Act 2011 to ensure that the records of the designated public authorities are managed in accordance with the 2011 act. The schedule lists designated authorities subject to the act's provisions for improving records management. The authorities listed must comply with part 1 of the act, which, among other record management practices, requires that proper arrangements are in place to ensure that records created by or on behalf of the named authority are subject to a records management plan that has been agreed by the keeper of the records of Scotland. The draft instrument amends the designated lists of authorities on the schedule, adding those that have been created, modified or whose names have been changed and removing those that have been abolished since the act came into force. It is necessary to update the schedule to ensure the effective management of records under the 2011 act. The keeper consulted with and obtained agreement from the public authorities affected by the proposed amendments, and the keeper continues to work with the proposed designated authorities to assist their preparation to fulfil the statutory responsibilities that are incurred by being listed in the schedule. As detailed in the business impact and regulatory assessment that was undertaken here, the financial implications of the proposed order will be minimal. The draft order will only financially impact on bodies that do not already have record management arrangements in place, which is a requirement of the 2011 act. As I have mentioned, those bodies have been consulted and are content with their inclusion on the list and the financial impact that they will have. Furthermore, those organisations that already have records management provision will not incur any significant cost as a result of being listed on the schedule to the 2011 act. The proposed order will play a vital role in ensuring that the policy objectives of the 2011 act are met. By amending the schedule proposed, we will ensure that all public records created by those authorities are properly managed and safeguarded for future generations, and I am happy to respond to any questions that members of the committee have. Thank you very much, cabinet secretary. I ask if any members have any questions that they wish to put Mary. On that particular point, I am also a member of the Public Audit Committee. We had a report on Glasgow Prestwick Airport, which is listed in this order. We were told in the past that commercial confidentiality was an obstacle in terms of gaining certain information, but I note here that it is in the public interest for the public records of Glasgow Prestwick Airport to be properly managed and safeguarded as evidence of how public money is used. Page 6, convener, paragraph 1, 2, 3, 4, 5. Paragraph 5, page 6, I have just quoted from. I would like to ask the cabinet secretary what difference does the order make in terms of record management, in terms of commercial confidentiality, in terms of, if I can just say, the Public Audit Committee of this Parliament auditing, scrutinising and examining how public money is spent in Prestwick Airport? Well, clearly, the issues around Prestwick Airport can be dealt with by the relevant minister in relation to the issues around the management of Prestwick Airport. In terms of publication of information, that is a separate matter than records management. The issue around—I'm not sure if MD and this committee took the bill through at the time—the national records management system is really important. It came from, you'll recall, the historical abuse cases where many different local authorities didn't keep records or bodies didn't keep records of children in particular, so that was the premise of having the records management. The record management itself is having a plan to make sure that you keep your records, and how your records are then used publicly will also be a matter for whether it's in for different bodies, freedom of information, or Public Audit, or Audit Scotland. However, if you don't have a record management system in the first place, you could quite easily have a system where you're not keeping records properly. One of the reasons that we have the bill, or as now is the act, is to make sure that not only is there a proper management system, that the management system allows you to determine what you keep or what you don't keep, because, particularly in a digital age, it's important that there's an understanding of what is important to that particular organisation. The act itself, the Public Records Scotland act, is about improving the standard of record keeping and making sure that there are records being kept. The use thereafter for public bodies like Public Audit would be a matter, say, for the committee to determine in terms of what they request or Audit Scotland to determine. This is just to make sure that the right records are kept and that they understand what records must be kept. It's a slightly different issue than what then becomes public. I understand the point of the question, absolutely. I do understand all that, and I think that all that goes without saying, and I haven't been here for a week while. I think that everything that he's saying obviously is known and understood by every MSP in this Parliament, but the fact is that, on page 6, the comment that I made made me think, or it seems to imply that in the public interest, public records being properly managed on how public money is used, that is saying to me that there's an improvement in the system of Audit. There's an improvement in openness, an improvement in accountability and transparency, and all I'm asking you—I'm not asking about what data has to be kept and not kept, but I obviously understand all that—what I'm asking you in the process of accountability and transparency and scrutiny of the public pound, is this order going to improve things or not? It depends how it's used by the bodies that then look at the records. Do you have thought that we would know that? All this is about managing records. It's not about what you do with the records, it's about making sure that you've got records there in the first place. TS Presswick Hold Company Ltd, otherwise known as Glasgow Presswick Airport, is a publicly owned company, as the member has set out. It's wholly funded by the Scottish Government. In a manner like David McBrain and Caledonian Marine Assets Ltd, which are all, which themselves are already included on the schedule, so it's similar to how Caledonian McBrain has been managed, and the public interest of the public records can be properly managed and safeguarded. It's the management and safeguarding as evidence of how public money is used. It's also named as a public body on the Scottish Government's directory of national devolved public bodies. That's maybe an issue for the Audit Committee. I understand the point that's being made, but in terms of the record management, it's been treated similarly to the David McBrain Ltd and Caledonian Marine Assets Ltd in that way. I know all that and, to be fair, convener, I'll just go back to my first question. What difference does this make to the information that we have already? If they are keeping the records the way they should do in alignment with the records management system, it will make no difference whatsoever. Indeed, some of the bodies that are on the schedule are already complying with the 2011 act. All this order does is to make sure that, in terms of the legal requirement to keep the records and the standard of the 2011 act that they're actually named. It may well be that we understand that none of these bodies already are complying with the act, but this is about the record management system, not what is done with the records once they're managed in the way that they're expected to. Some of the company organisations will already be doing that. Thank you. Thank you, just to follow on Mary's question. Having met the new board of Presswick Airport, that's Presswick Airport, not Glasgow Presswick Airport, their understanding of governance and record keeping, I think, is paramount, so I have less concern about that. However, Cabinet Secretary, having sat through the Land Registration Act in the EET committee, it was some concern about the amount of records that were kept and also the use of them. Who's going to audit the records and make sure that they are fully compiled and cover all of the requirements? That's the first question. The second question is, what's IT involvement is being checked because, again, we had a problem with an IT system that, frankly, ran totally out of control and was not being used because those who might have been used it like surveyors didn't think that it was fit for purpose. Who's going to audit the information and make sure that it's okay? Two, what's the IT involvement and who's going to check that to make sure that it is fit for purpose on all of those public records? I might ask whether you should come in as well. In terms of the keeper's responsibility—that's laid out in the act—the job of the keeper is to ensure that the management plan is sufficient to make sure that the required information is kept, but it also allows them to understand what their determination is and what isn't kept because, again, the initial purpose of the bill was to address a situation where very personal information to children just wasn't kept in terms of children's homes or indeed different authorities. It's not the job of the keeper of the records. National Records of Scotland is a very important body, but it can't sit and go through the content of every single public body that has a record management plan. What it can do is make sure that the record management plan produced by each organisation is fit for purpose. In terms of making sure that it's IT compliant, that's one of the reasons why we brought in the legislation as well, is to make sure that, in the digital age, there's good systems. This is a systems management as opposed to auditing the content. Obviously, for different organisations, the content of what is kept, what is used for, will be dealt with by a variety of different agencies that hold these individual organisations to account, but what they must do is provide evidence. One of the things that is in full achievement of compliance is using a variety of agencies. My question is very simple. Who is going to audit to make sure that the information is bona fide and 100 per cent complete? You can't possibly—that's not the purpose of the legislation. The legislation as scrutinised by this Parliament by your predecessor committee was about the management system to make sure that they had a system by which they had a gold standard of how they kept their information. For different, whether it's education, whether it's housing, whether it's police, whether it's whoever it is, will have their own bodies that scrutinise their own detailed content of what they have and the information, but I think that it would be wholly unrealistic to expect the keeper of the record archives of Scotland to have either the staff capacity to interrogate the content of every local authority or every public institution to test the veracity of the information. Random audit doesn't involve huge numbers of staff. In fact, even if it was outsourced, you would still have random audit of making sure that the records are correct and the process is right. That's why the audit and compliance for the relevant professional bodies or the different areas will do that for the relevant areas. What you can't expect the records management system to do is to interrogate the information. It's a record management system. It's not a record interrogation system. We now move on to agenda item 2. As indicated, we'll move to the formal debate on the instrument, which is item 2. I invite the cabinet secretary to speak and to move the motion. I move the motion that the committee approves the order. Any contributions from members? Okay, cabinet secretary. I don't suppose you need to respond to that. Therefore, I'll put the question that motion S4M-13600 be agreed to. Are we all agreed? Agreed. That's agreed. Thank you very much. I will suspend briefly to allow the cabinet secretary and officials to leave. Our next item is to consider various pieces of subordinate legislation that are listed on the committee agenda. Do members have any comments on those instruments? Mary. The only comment that I would make as a signed up member of the awkward squad is, for example, we keep being told that there's a failure to comply with 28-day rule. If I look at page 5 in relation to St Mary's music school, the Scottish Government has provided a letter to the Presiding Officer, which is fair enough—that's fine—paragraph 19, page 5. I wonder, convener, why is that letter not provided to this committee in terms of openness and transparency, so that we're aware of why they can't comply? I just feel that that might be helpful for future consideration. It's in the annex. If you look at read paragraph 19, the last sentence is, The correspondence is reproduced at annex C. It says in the papers that they're online. They're not reproduced. It's not all printed out, but it's available online. It says in your papers that these are available online if you wish to look at the annexes. I realised that it wasn't in the papers, but I'm not that exercised to go online to look for it. However, I think that it would be helpful in future. I can't imagine that it's a witty document. I think that it would be helpful if you saw that. I think that the problem is that either the clerks on me would know which ones members would be particularly interested in, and we can end up with a lot of them. The situation is that the decision has been taken that it's easier to just point to the online copy rather than print out all multiple copies. To be fair in this case, I think that that's about the only one in this bundle of subordinate legislation instruments. I think that it's about the only one that has existed in the past. If there is a common reason for not complying, I think that it would be helpful for the committee to know. No, I'm not disagreeing. There are a number of annexes, although there are more than one. I take the point on board to make sure that everybody is aware that the annexes are online and are available to view if you have any questions or wish to look at them. Any other points? This is not a big issue, but my time on the legislation committee. Page 4. The Scottish Government has acknowledged that the instrument contains an error but does not propose to amend it. It then says that the error is minor. In nature, however, there is a matter of good drafting practice that considers the error should be corrected when a suitable opportunity next arises. Time after time, after time, in that committee, we ask that whoever is drafting the legislation or drafting it or is made sure that it was absolutely correct so that there was no doubt or misinterpretation should we get into a question over that. It's just a record. Can we please ensure that we give the message that we expect the highest standards of draft legislation and draft orders to be presented to us? I mean, this has been an issue going back all the time. I've been here and I think that's a fair point made. I think that it has been raised numerous times. I think that on this occasion it is a very minor drafting error on this one, but I accept the point that the principle is the same. The next time it will be a bit more, you know, less minor, more major. No, no, I accept the principle. If the committee wishes, I'm quite happy for us to write to the Government if that's— I think that we will find that the convener of that committee is very sympathetic to that view of how legislation is drafted. Do you wish a letter written to the Government? No, okay. Okay, the bank, the points made, it's on the record about trying to ensure the accuracy of draft instruments and the points well made. Any other points by members? Okay, does the committee agree to make no recommendation therefore to the Parliament on these instruments? Agreed, agreed, thank you. The committee has previously agreed to hold the next item or next items in private so therefore I now close the meeting to the public. Thank you.


an exciting day. I personally witnessed history being made again. Here Triton coming from the West Coast to the East Coast, it's longest flight ever, not just geographically, but time in the air. It was just goosebumps. It was a phenomenal sight to see and to experience with the team. What does this mean for naval aviation? Another inflection point of unmanned aviation capability. With this arrival of Triton here at the Naval Air Station Protection River, we now start and earn us the integration effort of our sensor suites and the warfighting capability that will deliver to the fleet here in the 2017 timeframe. This is an enabler and a game-changing capability that will be blended with our P8s to make sure that our fleet has got the right maritime surveillance capability today and into the future. This is an exciting day. And you could really feel that excitement among the employees and spectators that are here today. Talk to me about the team effort that went into making this happen. Absolutely. Although the folks here are excited, you can feel the energy, the electricity and the people, the humanistic element as I call it. But this team, this Navy, Nav Air, PMA 262 and the Northrop Grumman team coming together, long hard road to get the design requirements right, bend the metal, write the code, put these air vehicles together and then put the complete system together. Each of those engineers, those scientists, those logies, those testers, the programmatic teams and also those enabling folks, the lawyers, the finance folks, the contracting officers, everybody coming together. This is a complete team effort and each of them have a say in this and have justifiably proud moment of bringing Triton to PAX River. Thank you, sir. Thank you. Okay. Exciting day here, sir. Tell us how it felt to watch Triton land. Oh, it was incredible. I mean, this has been a journey of about eight years for the team. I've been part of it for the last three years. But to be able to have the team out here to observe all of their hard work as Triton made its first touchdown is just incredible. So what does this mean for naval aviation, especially on the Navy? So this is really the future of naval aviation. I'm a P3 pilot by trade. I've flown my entire career and Triton is part of the P3 replacement. And so when I think about that and think about where this is going to take naval aviation, it's just incredible. The technology, the capability, it just redefines how we do things. All right. And tell me about the team effort that went in to making this happen. Oh, total team effort. And what's incredible is we have people here that were part of the program in the beginning, who have left the program and come back. We have people on the program team who have been here since the beginning. And of course, the current program team for them to come out here. And again, many of them have not seen Triton in person before. And so the incredible feeling for the team. And it is every person on that team is part of the success here today. Thank you, sir. I appreciate it. All right, thanks.


Welcome everyone. Maybe you've already seen my favorite feature and this face is familiar to you. If not, my name is Stein and I would like to thank all of those that have been seeing our video series and I hope that you have enjoyed it. Although this is the end of this year's my favorite feature, we've already promised ourselves that we are going to come back to you with even more happy super users, with even more tips and tricks and hopefully make your day more enjoyable in using super offers. So stay tuned and watch this space. Oh, I almost forgot. We wish you a merry Christmas and a happy new year.