I welcome members to the 25th meeting in 2015 of the Delegated Powers and Law Reform Committee. As always, I ask members to switch off mobile phones, please. I welcome Richard Baker back to the committee. Agender item one is just to ask whether Richard has any interest to declare, please. I don't, can we simply draw members' attention to register of interest? Super, thank you very much. Agender item two then is a decision on taking business in private. It's proposed we take items 11 and 12 in private to allow the committee to consider the evidence received on the Land Reform Scotland Bill and the Succession Scotland Bill. Do we agree to take items 11 and 12 in private, please? Okay. Agender item three then is the Succession Scotland Bill. And it's oral evidence. And firstly, we're hearing from the Law Society of Scotland. We will shortly hear from the faculty of advocates and lastly from a panel of legal practitioners. It's my great pleasure to welcome John Kerrigan, who's representing the Law Society of Scotland. Good morning sir. Thank you very much for coming along. Good morning. And agreeing to be grilled. We have an interesting problem of trying to understand all this, as you'll appreciate, as laymen. We also have extensive notes here and we also have to try and work out which questions we ask of which panel. So if there's a degree of confusion, even in my hands at the very start, that's maybe something we can sort. I think questions one and two. Sorry. I think actually I'm going straight to John Mason with what I think is question three. Thank you John. Sorry, I wasn't quite expecting that, that's fine. As I understand it, there's, well, there are the possibility of two pieces of legislation on succession and full of more provisions of this bill could be amended by secondary legislation. I mean considering the impact on practitioners, if you saw the Government's response last week to questions, I wonder if you were reassured by their explanation that it would only use the amending power for fine tuning, which would be well publicised in advance, and so I think did not need to go back to primary legislation. Yes. You are satisfied with the Government, right? Okay, thank you. I think that takes John Scott then. And in oral evidence, the committee last week, the Government and the ASLC defended the inclusion of guardianship within the scope of section one on various grounds. Does the law society want to comment on any aspect of this defence? For example, does the explanation that parental rights and responsibilities will cover most situations adequately take account of the increasing role of stipends in family? I think my answer to that question is yes. I think our concern was that there could be situations where a couple become divorced etc. However, if one of them died, they would not have any objection to the other being guardian of a child that was involved in the relationship. I understand the Government's position on that. The section one does say that the will can provide otherwise. There may be a question as to whether or not the legal profession gets up to speed on that quickly. However, I take the point that if a guardianship provision was revoked by divorce, surviving parties could seek parental rights etc. There is a question of time involved in that. Okay, thank you very much. Another aspect of the Scottish Government's defence of the current scope of section one related to the possibility of a person subsequently applying to court to be appointed guardian. Can you shed any light on the likely timescales and the costs associated with doing that? Because we wouldn't want the costs to stop such an application where there was hardship involved. The likely timescale depends on whether or not the application is challenged, defended. If it was an undefended application, I actually had notice of this point and I spoke to one of the senior solicitors in our family law department and she indicated to me three to four months if it is undefended. If it were a defended application, then it could take a year and a half or longer. Costs in any court action, costs depend on how long the court action runs, but you are talking about possibly significant cost if it is defended. I am comfortably blunt. What is the significant cost in the context? Well, it depends on the client for whom you are acting, but if the client cannot get legal aid and the bill comes to £6,000, it could quite easily, if it was a defended action. I would regard that as a significant cost. Indeed, so would I. Thank you for that. Do you regard the situation as satisfactory then or unsatisfactory or is it something else that we should be doing? The only way you could change it would be to change section 1 to say that it would not apply to an appointment of the surviving spouse, civil partner, as guardian. Otherwise, you are left with the situation that you have outlined. But it would need to be written either into law or into the will, I suppose. In fairness section 1 does say that you can contract out of its terms. Okay, thanks very much then. The Government's bill and trust bar appear to have a slight divergence in relation to domicile in relation to section 1, divorce dissolution and annulment. The Government's position is that it is the domicile at the point of death, in essence, that applies, whereas trust bar are suggesting that it seems to be suggesting that it is the domicile at the point of the ending of the relationship in legal terms. What are the pros and cons of that? I can understand trust bar's attitude because what is the situation if you have a couple who are domiciled in Scotland and they become divorced in Scotland and then one of them moves permanently to France and dies in France? Arguably section 1 might not apply there. If it is domicile at date of death, it matters. But if you are domiciled for the sake of argument in France at the point of death, will it not be French civil law that will cover the estate that is derived? Yes. Will we believe in the side issues around heritable property perhaps that might be different? Yes. It would be the law of the place of domicile that would apply to movable property. That is at least the Scottish law interpretation of private international law. Therefore, what the Government is proposing at least has the merit of synchronising the law that would apply at a single point in time. That might be said to be the advantage. I understand the Government's argument. This is a law dealing with succession and succession arises from death. I can see the point of the Government's argument there, but I can also see the point of the trust power argument. That is a very on-the-one-hand, on-the-on-the-hand answer, which I understand. Would you choose, please? Would I choose? I think that frankly I would choose the law of the domicile at time of divorce. If that were to be the case, what second level effects might derive from that that would add or subtract complications? If you are talking about somebody who has heritable property in Scotland—I take your point entirely if they go to France, the law that would govern the succession to the restate would be French law—but if they have heritable property in Scotland, the argument could be that that might still pass by the will that is unrevoked, because if the revocation takes place at death and not at the time of divorce, then if the original Scotsman is now domiciled in France, his heritage might pass in terms of his will that was unrevoked because he is not domiciled in Scotland at the time of death. As a layperson, to be absolutely clear what you are saying, that would be an effect if we were to apply the domicile at divorce, rather than the domicile at death. No, if you were to apply the domicile at death, then that would be the effect. So it is the more complicated one? In my view, yes. Right.  You are speaking on behalf of them when you say that, or rather than them in a personal capacity. I would say that that was a personal view. Right, okay. That's helpful, thank you. Good to know. Richard, I think, question nine. Yes, my question is on the society's suggestion, which has also been made by trust bar, that the scope of sections 3 to 4 of the bill on rectification of wills should be broadened to include wills drafted by the testatid themselves, such as handwritten wills, or wills created using templates that have been found online. We are asking why you prefer this approach, and it is not a danger that the broader these provisions are, the higher risk, the risk that every disappointed beneficiary will seek to use the powers in question. I understand that the Scottish Law Commission's view was that it should not apply to homemade wills. I think that their view was not based on that risk assessment. I think that it was based on the fact that if someone makes their own will, what evidence can you have that that is not the will that they intended to draft? They got it wrong. But if they have made a will online or used a template, the capacity for errors are much greater, are they not? Does that not impact on the provision section 3 and 4 made around assessing what is a simple error? Does that not become quite difficult at that point? It is a question of evidence. If you are saying that you can rectify a will that has been drafted by a slister because there was an error in the drafting, then you would need to produce evidence that that was the case. I see no difference. It is an evidential point. I just wanted to be quite clear. Is the point that is being made that it is the process of review a third party looking at the will working with the person who is drawing up the will whether they are doing it in their own account or with professional advice that touches on the matter or is it the fact that the third party is someone who is legally qualified and therefore might be expected to get the legal aspects of the bill correct as distinct from the intention? Is that where the distinction lies? I think that that is where the distinction lies. There was a recent case in England Marley against Rawlings where Lord Justice Neuberger introduced a caveat into the English application of their version of the rule and he said, where the lawyer gets a legal term wrong, that is not a simple mistake, which can be rectified. In a subsequent case, the word issue had been used by the lawyer. It was intended that the evidence was that it was intended that the deceased estateer wanted to include step-children in the request, but the way the lawyer had drafted it and used the word issue meant that they were not included, but they were not given relief in that case. The point here is that if there is someone who is legally qualified and in good standing with a profession has put a term that has legal force in other contexts into the will, then that will have a much higher certainty about intention placed on it than if I disappear into a cupboard and write something down and laugh at it. That would appear to be a caveat that Lord Neuberger introduced in relation to Marley against Rawlings. That would equally apply in Scotland. That would be a case. If I could go back to the last point, I think that it is fair to say that there would likely to be more cases of people turning up and saying that is not what my uncle intended, because lawyers practising in this field very often have people turning up saying that we want to challenge that will because it is not what he intended. The law at present has a degree of certainty in the sense that you can say to him that the courts interpret what is on paper. Can I just pursue that and ask why you were so certain that an English case would apply in Scotland? I was giving it as an example, but I think that in Marley against Rawlings they did make reference to a Scottish case Hudson against St John in 1976, which was inconclusive, but they did make reference to a Scottish case. Okay, that is helpful. I wonder if I could go on to the time limit for rectification, because some of our evidence suggested that people were concerned that the date of confirmation might take a long time to come, and it might be better to have a time limit that ran from the date of death than different times were suggested. I wonder if you could give us a view on that, please. It can take in some cases several years to obtain confirmation. I think that if someone had difficulty with the will and wanted to see it rectified, they should not be allowed to wait until six years had passed. I mean, I know that is the extreme case, but I do agree with some of the concerns that have been expressed about time limits. Could you suggest, and again it may be a purely personal view, what you feel might be a sensible time limit? Others will undoubtedly, later witnesses will probably have a view. My personal view would be one year from date of death. Right, thank you, that is helpful. One of the other things that came up was in evidence last week that the Scottish Government confirmed that revocation does not include a reduction of a will in court. Does the Law Society have any concerns about that? I think our concerns are related to, and it was just a drafting tweak, if I may say so. It is section 5 of the bill. Section 5, subsection 1, subsection B. The subsequent will, or part of it, is revoked. We felt that the necessary point here would be made by is revoked by the testator, if you added the words is revoked by the testator. Because a will can be revoked, as you have indicated, by a court. It can also be revoked by the application of an old legal presumption called the Cenditio Cetistator, which is, I think, still out for consultation in the second consultation document. Thank you. I am grateful for that suggested tweak. I think that that takes us to John Scott's place. I now take you to section 9 and 10 on the time of death. In the Law Society's written evidence, you and indeed Trust Bar take issue with section 10.4, which prevents section 10 from applying when the testator is one of the people who dies simultaneously or in uncertain order. Can you describe the nature of your concerns in this regard? Perhaps the help of an example that could occur in practice? If section 10.4 were to apply, there could be a situation where, pardon me, intestacy arises. Scottish courts and Scottish lawyers have always sought to interpret a document so as to avoid intestacy. I think that section 10 subsection 4 could have that result. In certain cases. We are not sure that section 10 subsection 4 adds anything to sections 9 and 10. Would you agree with Trust Bar's point that the word uncertainty in people who die simultaneously or when the order of death is uncertain? The use of the word uncertainty is likely to need to not just uncertainty but unnecessary litigation. I understand your point. I think that they cited a case in which the word uncertainty did appear to lead to litigation. I am going to go all vice-presidential here. Isn't it certain that in some circumstances there is uncertainty, whereas in other circumstances you are uncertain as to whether you should be uncertain? In other words, there are sets of circumstances where it is clear that you cannot resolve the answer to the substantive question. In other words, the fact of uncertainty is itself clear that there must be uncertainty, whereas in other circumstances that might not be so clear. Let me give you an example to illustrate the point. Someone is shipwrecked and there are two people who are the two people concerned, are drift in a boat for three, four weeks indeed, and it may be that there is some evidence that one of them has written something that suggests they survived the other. So in that case you are uncertain as to whether there is uncertainty, whereas if there is no evidence you are clear there is uncertainty. Is that a fair comment that there is a distinction to be made about whether—and therefore you can have an argument about whether in law there is uncertainty and the rules about uncertainty apply, or in other cases there is a debate about whether uncertainty should apply or not? I think in the example that you gave, if you find them both with no writing dead in the boat, then you know uncertainty exists. You know uncertainty exists. If you find a writing in the boat, there may still be uncertainty. Who wrote it? Yes, but the uncertainty is now a practical uncertainty rather than a legal uncertainty. Is that—that's just the point of—so all I'm saying is the use of the word certain or uncertain does not necessarily create legal difficulties because you can define the circumstances in which you are certain there is uncertainty in law? I think that I would say yes to that. That's grand. I'm wondering whether we might move on to the law of forfeiture, which takes us back to that. Indeed, and this is now about the dead and undead simultaneously, of course, which is exactly the same kind of thing. Essentially, the Scottish Law Commission has changed its position on the law of forfeiture in 1990, thinking that it should be placed on statute and now thinking that it is sufficient to simply abolish the Parasite Act of 1594. To rely on common law, are you content that that is sufficient? I think that the Parasite Act of 1594 has had its day, quite frankly. Firstly, it only applies to the killing of a grandparent or a parent, so it's not like the common law, mainly English common law, of a sheet and a tender where you were not supposed to benefit from your own evil act, which could mean killing somebody else who'd left you, not your grandparent or your parent. There's been considerable doubt in Scotland as to whether or not the Parasite Act applies only to heritage, and it also had a very unfair aspect to it because, again, applying the old Norman concept of a tender, if I killed my father, any benefit under the Parasite Act I would be deemed to have predeceased my father, but any benefit that he had left in his will to John Kerrigan whom failing to his issue was a tainted and they were not entitled to succeed, even although they were wholly innocent. That has to go. I think that the recommendations contained in the bill on forfeiture are good. In essence, giving the courts the total discretion makes more sense because you can cover in particular eventualities not yet foreseen. The one that came to my mind in the current environment is where someone has assisted travel to the dignitas clinic in Switzerland to die at the choice of the person who is dying, but who is subsequently determined to have acted in some respect illegally should not necessarily be disbarred from total inheritance. That seems to me to be a reasonable place to be. That would be my personal view. Is this the view that changes over time? You're going back to 1594, but if you go back to the Old Testament, where the sins of the fathers are visited unto the sons and unto the next generations, which was, I think, the accepted practice then, is this not something that seems to change? As Stuart has said in 1990, the Law Society had one view today and we have a different one. I think that everyone is entitled to change their viewpoint. Quite frankly, I'm glad that we don't apply the lex talionis that is required by the Old Testament. I for an eye, a tooth for a tooth. The point that I'm making is that it seems to vary. I, again expressing a personal view, I think that the Scottish Law Commission said quite clearly that the Parasite Act should go. I think that the Scottish Law Commission said quite clearly that the courts should be given discretion to give 100 per cent relief from the effect of the Forfeiture Act. It also said quite clearly that where someone is guilty of murder, culpable homicide, manslaughter in England, and they are not given relief, they should be treated as if they had pre-deceased the person who has been murdered or who has died. I think that that's entirely correct, because if you look at the case of Hunter Petitioner, the husband who murdered his wife, her will provided in his favour whom failing other beneficiaries. The court took the view, disagreeing with the view of the Scottish Law Commission as expressed in 1990, that the husband could not be treated as having pre-deceased. That meant that the beneficiaries who were totally innocent, who would have taken, had that rule applied, and that's what's being proposed here, were excluded completely. An example to the opposite effect in England is the case of Dr Crippen. Dr Crippen was convicted of murdering his wife. He was condemned to hang, which he was. Just before he was hanged, he made a will in terms of which he inherited the wife's estate. He made a will leaving his estate to his mistress, and the relatives of Dr Crippen challenged that will on the basis of the old medieval rules of his cheat and attainter, and were successful, whereas in Hunter Petitioner the family members who were innocent were excluded from succession. Right. In which case we move on to protection of trustees, I think, with John. Thank you. Section 18 talks about protection of trustees and executives in certain circumstances and introduces the idea of making inquiries as any reasonable and prudent trustee would have made in the circumstances of the case. The suggestion has been made that that might suggest that there's a requirement to advertise if there's uncertainty as to who beneficiaries might be. I wonder if you think that that is the case and if it was the case, would that have an impact on efficient and timely administration of estates? I don't think it is the case. The Scottish Law Commission didn't think that that was the case in 1990. If it became a requirement to advertise, it would interfere with the timely administration of estates. So, do you see this as a change from the present practice, or do you see it as a change in that there's more encouragement to advertise? No, I would. Slisters will advertise for a will. If a client comes to him and says, my uncle has died, I know he made a will because he told me and he showed me a copy of it but we haven't been able to find the copy and we don't know who holds the will. You would advertise in those circumstances for somebody holding a will, for example, for the late John Kerrigan, late of such and such an address. I can't recall seeing an advert saying we hold a will granted by the late John Kerrigan. Right, so if a will said just was quite vague in saying children and step children or something like that and there was a kind of vague idea that there might be people out there, would an advertisement be placed in that kind of situation? Yes, that would be, I think, a one-off situation and most solicitors would deal with that by instructing genealogists. Okay, so you wouldn't really see any particular problem with this section. As far as delaying things is concerned? I would not like it to become standard practice that you had to advertise that you held a will granted by a particular deceased because you would have to await responses to that. Agreed, I just wondered, I mean, I wonder if the courts, how they might interpret it, I take your point that you wouldn't want that to become standard, I'm happy to agree with that, but I wonder if some of your fellow professionals might kind of take an extra defensive position by advertising? They might. I mean, every solicitor will follow his own gut instinct in a particular case, but if you were talking about would it be negligent of an executor not to advertise, I think that there could be very limited cases where yes, an executor would be advised to advertise, but not across the board. Okay, thank you. The last question relates just generally to the recommendations that were made and whether or not you feel they've been adequately implemented because the SLC made a number of recommendations relating to private international law in 2009. Recommendation 50, that the Scottish courts should have jurisdiction when the deceased died domiciled in Scotland and when he or she owned land or buildings in Scotland. Recommendation 45, recommend that the capacity to make or evoke a will should be determined by the law of the status domiciled at the time of making or evoking the will. Recommendation 50 has only been partially implemented and recommendation 45 is still being consulted on. Is it in your view desirable that reforms to complex subject like private international law should be split over two pieces of legislation? How do you see the balance of all this? Quite clearly there are going to be two pieces of legislation, so if those matters are dealt with in the second consultation that was published in June or as a result of further deliberations then yes. As a practical matter there are going to be two separate succession Scotland acts. Clearly conceptually that's not as good as one bill would have been. No. Does that in practice put you in any particular difficulty, bearing in mind that most of Scots law is pretty dispersed? My own personal preference would be that there would be a consolidating act, which would incorporate the provisions of this act to follow on this into one act so that you have one source. If we were to do that would there be other extant materials that we'd want to put in or need to put in to that or is it just about running the two together? I guess what I'm trying to say is how much statute law on succession is out there, which would need to be in a consolidating bill along with the two that we're currently talking about. Well you've got the succession Scotland act 1964, which in large measure would be replaced by, I think, the second act, which is going to deal with the more controversial aspects. The succession Scotland act 1964 mostly deals with intestate succession, and the matters presently being, well the consultation period I think is now ended, but the matters in the second consultation paper were largely on protection from disinheritance and intestate succession. What I'm saying is that the succession Scotland act 1964 is likely to be largely replaced by whatever second act is promulgated by the Scottish Government. Okay, if I'm interpreting that properly then that does suggest to me that if there were to be a consolidation it would want to be, if I may invent a term, a complete consolidation so that we would get rid of absolutely everything into one statute at the moment. Yes, I think that would be preferable. Yes, okay, thank you very much indeed. Right, do colleagues have any more? No, I think that's us for the moment. Thank you very much Mr Kerrigan, and I shall brief us to spend the meeting while witnesses change over. Thank you. Right, I welcome at this stage witnesses from the Faculty of Advocates Laura Dunlop, QC, and Wojciech Jadelski. I think I've got that right. Thank you very much for coming along, and I will open the questions and I think you've seen the format. The Faculty of Advocates provided a written submission, which we're very grateful for, which indicated a high degree of satisfaction with the bills currently drafted. On the other hand trust bar, a group of advocates practicing in the area of disputes relating to discussion and inheritance made a number of detailed points relating to policy content drafting the bill. Does the faculty want to comment on any aspect of what trust bar said? I'm happy to comment on specific aspects of trust bar's response if that arises in further questioning. At this stage, as a general comment, I should explain that I am the co-ordinator, as it were, or the convener of the Faculty's Law Reform Committee, and I coordinate what consultations we will respond to and what ones we won't, and I select a committee with the assistance of the other members of the Law Reform Committee. We choose a committee to prepare a consultation response. The practising membership is over 450. In recent years, a number of special interest groups have been established within the faculty. Plainly their raison d'etre, as in this case, is to look at matters of trust and succession. People who are interested in and also have expertise in those areas tend to form the membership of such groups. We are taking an independent look at a reform proposal such as this one. The faculty's position is that when we are preparing a response on behalf of the whole faculty, we try to have that exercise carried out by members with experience in the area of law. Sometimes that is easier than others. In this instance, we responded to the Scottish Government's consultation last autumn, which covers most of the material that is in the current bill, and the committee that prepared that response, which was a group of five people, had expertise in the area. Once we have done something like that, we have tried to be consistent in what we see on proposals. That is reflected in the evidence that we submitted. It is entirely a matter for trust bar if they want to come along and raise different points. If the faculty takes a position on an issue that we would regard as legal policy, the Government decides not to go with the faculty's view, then we would probably regard that as a spent argument. We would move on, whereas a trust bar might want to make a policy point again. It might want to try before this committee to make a policy point that appears to have been rejected by the Government. Thank you. That is a helpful clarification of how that works. Clearly, one of the issues that we just touched on with the previous witness was the whole fact that we are having two succession bills at the moment and one that is theoretically dealing with the less controversial matters and the other one later on, probably the more substantive things. Is that a situation that you are comfortable with? Is it just the way it is or is it not ideal? Well, to a degree, it is uncharted waters. I tried to think yesterday of other areas of Scots law where this kind of law reform has taken place, where you have a small act and then a bigger act coming. It is actually quite difficult to think of a direct parallel. I can think of areas of law reform where there has been one major measure and then a smaller act coming afterwards that tidies up some of the practical questions, but it is difficult to think of it the other way around. On the other hand, I do understand the thinking behind trying to extract the uncontroversial parts of the succession proposals and put them in a short technical bill. I understand what I think is the reason for that. I accept that it has generated a mixed bag of proposals that only have in common the perception that they are less controversial. Would it have been better to put those proposals into the main consultation paper? Well, the main consultation paper, as you probably know, has 71 questions already, so it is very large and taking a lot of work. That kind of linear progression, obviously, is giving up the chance of parallel working, which is going on by choosing to do it this way. You can have the short bill going forward at the same time as people are making up their minds on the longer consultation paper. I am a former law commissioner, so I am aware of all the reasons why the procedure before the committee was introduced in the first place, and it is a good idea. It may be that the first bill—the legal writings, counterpartisan delivery bill that the committee considered under that process—will turn out to have been a more suitable measure because it was a discrete piece of reform, and that is not. However, the committee will obviously form its own view of that at the end of the process. It is very difficult to say that the way that this is being done is clearly wrong. I will link to that. Section 25 of the bill under ancillary provisions gives Scottish ministers quite wide powers to amend by regulation. I think that there has been some suggestion that, in this case, it should be primary legislation that is used again if there is to be any amendments. Do you have a view on that? The faculty, as a whole, has not really taken a position on that and would rest with the assurances, given that that would not be used to effect substantive change. Returning once again to the issue of domicile. In our previous evidence session, we perhaps heard the arguments on both sides of the case for whether the domicile at the point of the ending of the relationship in law or the domicile at the point of disease should carry greater weight. The bill goes for the latter. How do the faculty see the balance of argument there and do they think that the Government has come up with a better answer? To reiterate the point that I made already about an attempt to be consistent, we certainly didn't flag this up as a concern when we responded last year, but in view of the fact that it obviously is of concern to others, we have revisited it to a degree. The first point that I would like to make is that this is a default rule for people whose relationship has ended without taking any action to change a will that makes provision for their ex, if I can put it colloquially. The solution that is in the bill of using the law of the domicile at the date of death means that at death there is a deemed pre-decease, so the divorced partner is treated as already having died. I tried in preparation for today to think of circumstances in which that could produce an undesirable outcome. As far as I can calculate, I think that the possibility of an undesirable outcome is very small, because you would be talking about somebody who divorced in country X, who checked that by the law of country X the provision in favour of their former spouse or partner would survive. On that basis, they did not make any new testamentary provision. They then moved to Scotland and became domiciled here. It is our different law, the fact that we have chosen to use the law of the status domicile at the date of death, would affect that change that the person did not want. I found that quite an implausible example, because somebody who has checked what the law is in country X is quite likely to be attentive enough when they move to Scotland to make a different testamentary provision here to protect their former partner. This class of person who wants to benefit their former partner, notwithstanding a divorce or termination of civil partnership, I suspect is a pretty small class. Can I just challenge that slightly, if I may, because you appear to be invoking the law of assumption in that is it not the case that only a minority of people write wills in any event, and therefore most people's disposal of their assets at death is based on people having a broad assumption that the right people will get it, rather than they are actually doing what you have described, which is a systematic and rational approach to those matters. I think that this is a question that has been diable by lots of assumptions. There is a quite major underlying assumption beneath the whole thing, which is that the majority of people would not want their ex-spouse or partner to continue to benefit by means of a testamentary provision that they have forgotten about or not done anything about. If that is the general assumption, the route that the bill is taking is quite a sound one. The downside, I thought, I could see if you made it a question dependent on the law of the domicile at the time of the divorce or the ending of a civil partnership, then you are introducing into the administration of the secretary a question of what we still call foreign law. You would be stimulating a factual inquiry as to what the testators domicile had been at the time of the divorce or the ending of the civil partnership, which is the first question, and then a question as to what the law of that place is on the effect of divorce or the solution of civil partnership on testamentary provision. The downside that I see with going with the alternative is that you are generating a degree of uncertainty. The ex-execuitors would have to establish what may have happened, and I use the word may deliberately, in another legal jurisdiction. Not all legal jurisdictions are as accessible as some. Some will be difficult to deal with. That is possible, and there will have been the passage of time. The provision that is in the bill plays to the common assumption that people will have that they have cut all ties with the person whom they previously had that relationship with, and anyone who thinks that it should be otherwise has the way of making a testament that takes account of that, which this would not discount. Yes, I agree with that. I suppose that debating is not really an argument as such, but the debate is between do you fix it according to the law of the place where they were domiciled when the relationship ended, or do you just say at the time of death if they are domiciled here that we treat the former partner as we deemed them to have pre-deceased? The bottom line is that when somebody dies in Scotland, the law of Scotland cannot be removed from working through the consequences of their death in testamentary terms, so therefore to have some of it somewhere else is merely complicating. I think that one could suggest that that is a greater complication. Thank you very much. I think that that takes us to Richard on the revocation. Thank you, convener. Earlier, I asked Mr Kerrigan about a law society's suggestion that the scope of section street 4 of the bill on rectification of wheels should be broadened to include wheels drafted by the distates themselves, such as handwritten wheels, or wheels created using templates found online. Trusts are also have made the suggestion as well. I would just like to get your opinion about that proposal. I have looked into this, and the first thing to say is that in the faculty's response a year ago we supported this narrow provision, if I can style it such. I would look to be consistent in relation to that. The law commission in 1990, as Mr Kerrigan suggested, articulated concern about the fact that people might have made statements to relatives, might have been not totally frank, or might have changed their mind. Of course, the time at which the intention matters is the time when they are actually making their testamentary provision. The law commission was persuaded by the difficulties of comparing what is in the will with supposedly some other evidence about a different intention. The law commission was persuaded to restrict its recommendation to the narrow type of measure. There is an interesting interplay in any law like this between rectification and interpretation, and it is sometimes said that if you have a wide door for rectification, you only have a narrow door for interpretation, while this being a narrow door for rectification, it might be that the courts would take a more generous approach to interpretation, and if somebody has made a bit of a mess of their own will, which they have done themselves, the courts might be prepared—and I accept that this is speculation—to be more generous in interpretation if it is reasonably clear what the testator was trying to do. I do not want to advance a position any different from the law commission's recommendation that this is confined to a really quite a narrow scenario. I note that that appears to be the position in England as well. It is a fairly narrow rectification provision that operates in England. You do not see the danger. The law society did not see either that the broader provisions are, the higher the risk that every disappointed beneficiary will seek to use the powers in question. It is speculation, but I agree with you about that. It is very hard to limit the use that would be made of a wide provision. The faculty in its response last year also made the point that it would be difficult to be selective about the intentions that one would be trying to reflect, so, for example, if the testator's intentions had been to be highly tax-efficient, and it turns out that the will that has been made is not as tax-efficient as it might be, would that be good enough to open up the will? On that basis, the faculty did support the more narrow form of provision that we now have. I want to turn now to section 9 and 10 about the time of death. Again, the number of evidence that law society and trust bar take issue with section 10.4, which prevents section 10 from applying when the testator is one of the people who die simultaneously or in an uncertain order. Do you have any comment that you wish to make on that topic? I noticed that, in the law society response, it was said that it is slightly difficult to discern the thinking behind 10.4, and I would agree with that. I am going to say about what maybe the intention is speculation, but I wondered if the inclusion of 10.4 is really just to reflect the policy that underlies section 9. I did try to think of an example. The one that I came up with was if I make a testamentary disposal of my jewellery, such as it is, and I say that I am leaving it to my two cousins, and if I die and then my cousins die simultaneously, then, according to the first limb of section 10, then the jewellery would be split between their estates. However, if I perish too in whatever the calamity is, then the jewellery does not go anywhere near my cousins and their heirs, their family, their testamentary provision. That is just effectively disregarded, and it did not strike me as a bad result. I emphasise that that is my speculation as to what the thinking may be. I am not convinced that I am right. Thank you. I just further ask you about various sections in 9 to 11, and people dying simultaneously of where the order of death is uncertain is referred to, and trust barmate, the point that the word uncertain is therefore likely to lead to unnecessary litigation. Is that a view that you would share? I had a look at the case that is referred to. I think that trust barmate refers to the lamb case, and the first instance judge in that case did find it difficult. However, my view on looking at the appeal decision was that Lord Wheatley had sorted it out and he had said—I think that this was alluded to earlier when Mr Kerrigan was giving evidence—that round one you decide whether there is evidence to show on a balance of probabilities who died first, and if there isn't, you move to whatever the statutory rules are for a situation where it is uncertain. I do not think that the use of the word is in itself problematic. That takes us on to Mr Stevenson on the full feature, I hope. Indeed, it is interesting that the legislation website says that the Parasite Act has no legal effect, I note. Presumably, the appeal of the Parasite Act is not something that is going to cause any concern. However, to the extent in which the bill describes what should happen and leaves quite a lot of common law in place, is that a reasonable outcome? Basically, the courts can look at individual cases, and there will be very, very few in number, after all, and come to the conclusions on the facts of the case. Is that the right place to be? I looked up the Parasite Act yesterday. I looked it up in Westlaw, which is a commercial, but it is a legal research resource that is used by almost all of us. According to Westlaw, the Parasite Act 1594 has been enforced, is enforced and has been enforced since the 8th of June 1594 until the present. The only thing that is particularly striking—well, not the only thing, but one thing that is very striking about it is that legislation clearly used to include some adjectives of outrage, which is a practice that has fallen into disuitude, perhaps fortunately. However, I do not see a difficulty with the line that is being taken, that if you repeal the Parasite Act, the position that you are leaving is that the circumstances in which forfeiture will ensue are left to be dealt with by the common law, and that is consistent and allows the law to be developed by the courts on a case-by-case basis. It is not a big area of law. Perhaps in a perfect world, if you were trying to produce a complete statutory code for succession, you would include in that statutory code a chapter dealing with this sort of situation. However, my sense of the whole succession law reform project at the moment is that there probably has to be at least a degree of triage so that if something is not causing much practical difficulty, if it arises quite rarely, and if it can be left to be dealt with by the common law, then it does not need to form part of this legislative reform. Articulating principles on the number of issues that would need to be considered would, in itself, be quite a time-consuming task, and it might be disproportionate to the benefit. Perhaps, on the other hand, in this case, we are using the legal mechanism of saying that the person who committed the crime that led to the death is deemed to have died before the person who physically died. When we were looking at the law of domicile and relation to relationships that have legally ended, we are also using the mechanism of deciding that the partner who is no longer a partner legally died before the person. However, in one case, we are legislating and in the other case, we are leaving it to common law. Why the difference? I suppose because the range of factual circumstances in which one person may have some kind of connection to the death of another is potentially very broad. I cannot help reflecting that that is an interesting basis on which to legislate if I took that to the limit, then we would be saying that all the standard cases are the ones that we should legislate for or anything that was difficult. I am pushing this absolute to the limit should be left to the common law on the grounds that it is far better to let the courts sort out the detail than us to worry about. That is quite not fair. It is not consistent, but I believe it was Churchill that said that consistency, of course, is the whole goblin of small mind. I wonder if we might move swiftly on to the last question, which I asked Mr Kerrigan. I come back to you and I am hoping that you are familiar with this enough to go through all the words. You are perhaps aware that recommendation 50 from the Law Commission's 2009 report has not been completely implemented, that recommendation 45 is still being consulted on and that result will have a complicated subject of private international law across at least two pieces of legislation and some of it incomplete. I am just wondering whether you have any comment on how that should be addressed. The only comment that I think I can offer is that again there is a choice. Do you include a specific PIL provision within individual sections dealing with a certain scenario? Do you add at the end perhaps a subsection saying what the PIL position, private international law position is to be? Or do you have a chunk of your legislation that deals with private international law in a winner, as it were? There are advantages and disadvantages of both. I can understand why some provision for private international law is being made along the way in individual subject matter specific sections. Would you agree with what I think with Mr Kerrigan's position that once Parliament gets round to consolidating these two statutes that we are currently working on, that that should be a complete consolidation of previous statutes to the point where at least in theory at that point we have everything in one document? I do agree with that, with perhaps the small caveat that there is a painting the fourth bridge dimension to it in that one can never be totally satisfied that one has everything and there are likely still to be measures which bear on succession present in other statutes. But yes, I can see the need for a consolidating act at the end of this process. Do colleagues have any other comments now at that point? I think we come to the end of that evidence session. Thank you very much for your evidence, which has been useful and helpful, and we'll just suspend for half a moment. Thank you very much. We can reconvene. It's my pleasure to welcome Ailey Scolby, who's the private client partner from Burnett and Reed LLP, and Alan Barr, who's a partner in Brodie's LLP. I think my first question is that from a practitioner's perspective, what are the key areas of concern associated with the bill? Is there anything you'd like to see that's been left out, please? Who'd like to... Mr Barr? I mean, there are obvious things that have been left out, or at least deferred, notably in the kind of original consultation on this potential legislation. There was bonds of cation and a fair amount of proposed reform in these, at least possible reform in relation to these. That is forming the subject of the second consultation, or part of the subject of that. A point that you were making at the end of the last evidence session on private international law, there were some other bits of that that might have been in this as well. So, as has been implied already, we're kind of left with a relatively random selection of relatively small points, and I would endorse what has been said earlier about very much wanting some version of consolidation of two new pieces of legislation that are likely to be in successive years. It seems very strange that, particularly with two law commission reports, we moved from an act of 1964 and then various talk of legislation over that period, nothing, and then suddenly two acts. Would you like to add? Yes, thank you. Can I add? I agree exactly with what Alan said, but we have been having a little problem in Aberdeen, where the Sheriff, some 50 years after the last succession act, has suddenly started taking a different interpretation of the people who can be appointed executors. It's justifiable, but nobody has had the guts to go and debate it with him. It would be nice if, in some bit of the forthcoming legislation, it was set out who and in what order could be appointed executors. Primarily at the present moment, if there's no will, it's those with a beneficial interest, but it would be nice to have that set out as a priority. Can I say that that's a point that I am well aware of and have had correspondence personally about it? I think that I suggested to the faculty in Aberdeen that they write to the Government about that. Clearly it would not be appropriate for this bill, but it's surely something that could come into the other bill if it's brought to the Government's attention, so I would encourage them to do so. Thank you. I think that that probably takes us on to John Mason. Do you think that it would have been preferable just to delay this bill and put it in with the second one, which is due to come in due course? I do. The danger in that is that, because this is, if I could put it this way, more technical than policy, I imagine that the concentration on the second bill will be on stuff, like the protection from disinhertans, like the intestacy rule, and therefore things that are essentially technical and, frankly, not very commonly arising would not get this kind of attention, and that would be the loss in not having them in this separate bill. So, for that reason alone, it is good to have that consideration, but in terms of sheer efficiency and what we end up with, I think we'd be better with a consolidated bill, and we can still get there if we take the results of this and put it into a simply slotted wholesale into a second bill. I'm well aware and saying that, assuming that it can just slot in neatly to a second bill, I can see parliamentary draftsman tearing their hair at that and saying that it's not as bloody easy as you think, and I can well understand that, but I would hope that, with new legislation, it might translate into a new bill fairly readily. Another point that's been raised is the whole question of section 25, giving the Scottish ministers quite wide powers to amend and so on. Now, they've said that they would only use it for fine-tuning. Do you find that satisfactory? I have a preference for things of substance being done by primary legislation and getting this kind of attention, so, therefore, if one accepts what is said about fine-tuning, and that provides a more efficient parliamentary process and more likelihood, frankly, of getting things changed that need to be changed, then that is acceptable, but I would entirely agree that things of substance should be before the whole Parliament rather than ministers. Okay, thank you. I think that that takes us to John Scott for question 7 on section 1, the effect of divorce. Indeed, and of guardianship thereafter. I wonder if you would tell us if provisions in the world appointing a spouse as a guardian of a child fall within scope on section 1. I mean, should that be? Are you in favour of that? I think that the danger has already been mentioned is that a spouse who is also the parent of a child in question, of course, would continue as guardian, so this is appointing a more or less formal step-parent as the guardian. Therefore, you have a situation where that appointment could disappear if this legislation came forward. Now, again, you are making this assumption of what people would like. I think that there is certainly a decent case that actually, if they have been in a quasi-parental relationship with the child, then, regardless of the split-up of their relationship, they might be quite happy for that to continue. So, it is a question of one assumption over the other, as it were, that there is scope to do something about it for the divorcing parent, but they have to remember to do so otherwise this provision would take them out of the picture. I would just endorse what was said earlier, pretty well exactly, about the timescale and, indeed, costs of needing to apply for guardianship if that was what was required. It is very unlikely to be less than some thousands of pounds to do so, and that seems a bit wasteful if it could be alloyed. I think that that takes us to question 10 with Richard on powers court to rectify a will. Thank you, convener. I would like to ask your view of the question that I raised earlier around the law society suggestion that the scope of sections 3 to 4 of the bill on rectification of wills should be broadened to include wills drafted by the test data such as handwritten wills or wills created using templates that have been found online. I would like to get your view on the suggestion that has been made. I have seen a will done off the internet where the husband paid for his will but was a bit of a cheapskate and used that will to do the same for his wife. He changed the first line and got her name right but immediately appointed herself as a beneficiary. That, to me, is a classic case where this sort of remedy could be useful because you can see what happened, although spending another £15 would have resolved that. If you permit wills that are done other than by a lawyer to be changed through this route, it does not say that they will be changed and that it is up to the court to decide, and if you have to litigate to change then the costs of litigation are, in my experience, a real deterrent unless there is a largely agreement that the change within the family, that the change is the right one. Of course, you cannot get agreement properly if one of the beneficiaries affected is underage or is incapact for some other reason. I would see that widening it as being useful. Because there are those impediments there in practice, therefore you do not believe that it is going to lead to an explosion of beneficiaries challenging wills. In fact, there are enough impediments there already to the making of spurious claims, for example, through this. That would be my thinking for the average estate. For your mega-millionaire, the risk is different. There to safeguard the integrity of the intention. There are two points on that, perhaps just to expand slightly. This is providing a remedy that exists in a kind of different form now, because if there is serious allegation or serious evidence that a will has not been prepared in accordance with instructions, then it is possible to sue the person preparing it with some difficulty. This is an expansion of litigation called White Against Jones in England that spread to Scotland. You have this remedy. This would therefore be an alternative, particularly if everyone was agreed that what the intention was has not been fully carried forward. In a sense, it is replacing one fairly unlikely set of litigation with a different set of one hopes fairly unlikely litigation. One thing that I would follow up on is in the world in which we live, wills of the internet, more or less, are of course very common. I do not know, and I would not know from that legislation, is that being prepared by the testator directly, or has that been prepared at the testator's direction? In other words, if you have an interactive website that you fill in some bits, but either involving a human being or involving software, what you get back is not only just what you have typed yourself, is that your own will or is that in somebody else's instructions? I do not know the answer to that, and I think that that should possibly be covered one way or the other, either by exclusion or by inclusion, by making it clear which that is. That should be in the legislation itself, I think that it has to be. Otherwise, the courts will have to decide that, is a will prepared in that way, one professionally prepared or one personally prepared, and I generally do not know what the answer to that is, but I think that you could answer that by saying one way or the other. We certainly would not want to finish up in court to have to find out. Seems a bit of a waste. John. Reality will not be the only way that it can be decided in court as to whether it is professionally prepared or not. The opportunity of including wills that have been done over the internet expressly, you do not need to look at how that is done. You still have the complainants arguing about what the man wanted, and that is a different problem for them, but it does enable those wills automatically to be within the category of cases that can be reviewed. Thank you. I took a full step earlier, I think that Stevenson would like to go back to section 1, forgive me. Yes, I do just want to exercise my privilege. At what age can someone make a decision as a beneficiary? Well, happily if you are the lawyer dealing with it, 18, you could in theory do it at 16, but it is vulnerable to being challenged because you have taken advantage of them, so you would say 18. I do not want to make a meal of it. I just happened to know that my mother was an executor at the age of three. Was she not taken? She must have been precocious in reading and writing. Let us not go there because I cannot know. I merely know her father acted in her stead, that is all I know. Much more substantially, I wanted to explore the issue of domicile, as it is 1D, back in section 1, as to whether the arrangements that, essentially, the domicile at the time of death are preferable to the domicile at the time of the legal ending of a relationship. Certainly what has emerged, particularly from the faculty of advocates, would lead us to the conclusion that what the bill says is preferable. I think that what you are going for here, or what you must go for here, is certainty one way or the other, and this is not 100% one way and 0% the other. I would be slightly more, only slightly more in favour at the time of the divorce because you know you are likely to know the domicile at that time, and all that Scots law can direct then is what happens at that time. If you do it at the date of death, then you are potentially into the realms of private international law at that date, but you are going to have been the realms of private international law at one of the dates anyway. I do not think it makes very much difference. This is certain in that way. What we would be saying if you went for the domicile at the date of the annulment is that that is what Scots law is directing. If that is a Scots law divorce or annulment, then the will comes to an end at that point. If the person was then domiciled elsewhere at the date of death, they would look to Scots law at that time or possibly at the date of death, so you would still have that confusion as to which one governed at that particular time. Do you think about other jurisdictions where unilateral divorce is possible, where the person who has now died may have uncertainties to when, how and where that divorce took place and certainly might not have known about it. They might have died without knowing the divorce has taken place. Scotland, if you have disappeared, it could happen. Determining the law that applies at the point of death has a degree of pretty absolute certainty. Death is more certain than divorce, that is for sure. Indeed, if not in the modern world necessarily more inevitable. Can I just pick up on the issue of domicile, which you have just referred to, of course? How clear and certain is the concept of domicile? Not very, is the answer, I am afraid. It applies. It is scattered throughout our law for various purposes. It is by no means 100% certain. In the tax world, they are looking at trying to tie down there is an element of statutory definition of domicile in some aspects of tax, UK tax in relation to this, but it is overlained by the common law of where somebody is domiciled even in the tax world. It is not certain. It is very hard to make it certain, and if you were going to change that, then I think that you would have to move to a different kind of test, like length of time of residence. Residence itself is a bit more certain, but domicile is a pretty answer. I am just wondering if on that basis it might be more sensible to have domicile at the time of death, which might, not least because it would be later, be slightly more certain than domicile at time of an annulment, which might be very uncertain given some of lifestyles of the modern world. The ball has stopped moving at the time of death, so you are able to, as it were, take that snapshot. The reason why it is likely in most cases to have arisen at the time of divorce is that that would affect the question of where the divorce itself is likely to have taken place, standing the ones where you might have what I would describe as informal divorces. You are likely to have to address that issue, or some similar issues, if there is an international dimension to when the divorce is taken place. I am wondering if I could then go... On one aspect of domicile, when you get confirmation, which is the lead from the executors to get access to the deceased's money, you make an amendment of domicile, but without doing very much to substantiate that. If you have residence in Scotland, nobody queries it in practice, so that might be an issue with this debate discuss. Indeed, I am wondering if I could then go back to the issue of rectification and the time within which that might occur. Had been some discussion with our evidence as to whether that should be from when confirmation is granted or the date of death, and if it were from the date of death, whether it might be a longer or a shorter period. Do you, as practitioners, have a view of where that might sensibly lie, please? I would very much favour the retention of period from the date of confirmation, because until confirmation is granted, the will is not a public record document. Most solicitors handling an estate where there is contention will not release the will until they have to, in other words, at point of confirmation. To give a time limit within which the will must be rectified means that those who are executors have control on the timing of getting confirmation, and therefore it would delay that if it was in their personal interests. It is very easy to make it more than six months anyway. Thank you. That is a very practical reason for giving us a way forward. I am very grateful. The way that it has been done is a kind of dual system. If there is confirmation, it is six months of that date, and otherwise it is from death. However, there is then the follow-up that you can go for on-cause shown out with that six months for good reason. The kind of deliberate delay that Ailey is talking about would be a good reason to go out with that period if that became relevant. Would it be fair to say that the courts in general have a discretion to deal with time limits on-cause shown? No. No. Unless specific, one is often told that they do not, and that is the end of it. Is that something that we should change by statute in general? This is an extension, but we have got that. I think you are working to it. That is a big question, but you are here, and I have asked it. Is it one worth considering? I would say yes. Sorry, you do not have to give me the answer to beyond. It is worth considering. Okay. That was well off, Piste. Right. I am wondering if we could go, I think, with John Scott to question 14. Is that right? Is that where we have got to? Thank you very much. There is written evidence that the Law Society and Trust Bar take issue with section 10.4, which prevents section 10 from applying when the testator is one of the people who dies simultaneously or in an uncertain order. Do you have any comment you wish to make on this, please? Firstly, I am pleased to say that when this came out, I looked at it, and how often does this arise? The answer is fortunately very seldom. In 25 years of practice, I can think of one occasion where the predecessor to this law I have actually had to consider, and that was actually much more on the point that has already been raised in other evidence about whether, in fact, it was uncertain or not or what you had to do to, as it were, produce evidences to a more likely order of deaths. This does not happen very often. What is wanted out of this is, in the very few occasions when it does happen, certainty. To be somewhat blunt about it, it almost does not matter what that certainty is as long as there is certainty. It is a blunt instrument at best because you are making assumptions as to what somebody might have wanted in circumstances that really, in their worst dreams, they would not have contemplated. So certainty is really all that is wanted. I think that the law society's comment was on the basis that 10.4, which excludes the operation of 10 in certain circumstances, and thus throws you back to section 9. There was no particular reason why that particular certainty was preferable to any other certainty. Therefore, it did not matter whether 10 was excluded or not, if the tisdater was one of the people dying. Thank you. So, when the light of that comments or your comments, what would you make of Trussbarr's point that the word uncertain is likely to lead to unnecessary litigation, you would not necessarily agree? I do not think that I would agree with that. I think that it has been well put is that there is a two-stage process to this. Is it uncertain at all and only if you are over that hurdle do these roles then kick in? I think that uncertain is certain enough in Rumsfeldy, in other senses, if that is the case. Lord Weep, the wins the day. I think that that takes us on to Fofa Ture and Stuart. Just to give you the opportunity to perhaps agree that allowing the courts to have full discretion is the best outcome in the very small number of cases where it will apply, where someone has, by criminal act, caused a death and might otherwise inherit. I think that it is a fair approach and I have no problem with it. It leaves the court to exercise a discretion and the myriad of facts that will come before it. I would entirely endorse that. The situation is so rare. It will be rare or still, but there will be circumstances where there is a criminal law that is quite rightly recognised as criminal, but it will be entirely reasonable for the full effects of Fofa Ture not to take effect. I do think that this is one where you really cannot anticipate all the circumstances that might arise and try to legislate for them. I think that it would be ambitious in the extreme to try and do so. I think that that takes us on to the protection of trustees and executives with Joe Mason. Section 18 talks about that, as the convener said. In specifically, we have been pointed towards the phrase where it says that trustees are not personally liable if the distribution takes place in good faith and after such inquiries as any reasonable and prudent trustee would have made in the circumstances of the case. Do you think that that is a reasonable wording? Are you happy with that wording? In particular, does it suggest that maybe more advertising is going to have to take place than has taken place in the past? I would very much hope not. I think that if you were thrown in the situation, because this, in theory, envisages that every estate may have in it unknown beneficiaries who come out of the woodwork afterwards and that trustees could find themselves liable unless they had advertised in relation to every estate. I think that that is a nonsense. I hope that that would remain a nonsense. Also, advertising, this is last century or previous century stuff, the way that this is done now is that if there is reason to suspect that there is an unknown sibling that has disappeared, that did exist at one time, then at that stage trustees, executors will make reasonable and prudent inquiries. As has been said, these tend to be by the use of professional genealogists, by starting, including again very much the internet these days is where you go looking in circumstances where it is reasonable to do so. Now, in the vast majority of circumstances, it is not reasonable to do so and in the few occasions where this came out of the woodwork as it were, if the trustee was to find themselves liable simply because they hadn't in all 100 situations where this has arisen advertised and this has come out in one, I think that would be entirely unreasonable. So, I think that the wording is fine. I hope that people do not say, well, we have to be just and reasonable now and therefore being just and reasonable involves expensive and unnecessary effort in a very large number of cases for the very few cases where it might be relevant. Is this very different from where we've been already or is this effectively just putting in words what has been happening in practice? I think it's giving a degree more certain protection if what I have just said does represent what is reasonable and prudent trustee inquiries and I think it is. I'd agree with that. I've never actually advertised for beneficiaries between private detective and the local tic-tac. You can do amazing things in Scotland but of course if you've got people that have gone abroad you're into a different ballgame there or people that have come from abroad, which is even more interesting. That Polish people have settled in Scotland recently or after the second war? Thank you. I think that that's very helpful evidence to have on the parliamentary record, forgive me. How you actually operate is hugely useful because it is relevant. It's what practitioners do. It's very good to hear that. Thank you. I'm just wondering if I could come to the final question on private international law and you will have heard my question to your colleagues before. I'm grateful to you for being here to listen to it. Bits and pieces have been adopted, some bits haven't. Do you have any thoughts about how we should as a Parliament handle all that, please? Private international law is difficult. This is one of the most difficult areas because you're often not just back to another system but back and forth from another system to the Scottish system. All that we can do is to try and make our law as clear as possible so that when other systems are looking at situations either in relation to Scottish heritage or to Scottish domicile death, standing what we were saying earlier about domicile, what is the Scots law on the matter? I think that we should be legislating for that and its effects as much as we possibly can so that other systems can look at that and know what that is and we can know what our system is when having to apply it in situations with a foreign involvement. I would be all for including, and I think I would go the line rather than a bits and pieces approach, trying to include a private international law section as there has been in at least one of the law commission reports on as many rules as are up for consideration. I don't think that there is sufficient to actually create that even in the second consultation that's going on at the moment. It might be, dare I say, another project that needs to be considered but what we should get in is what we possibly can and we should legislate on it where we possibly can. I think that that's the end of our list of questions. Is there anything that either of you two would want to add, please? Only to reiterate that we're very conscious. For a start, it's a very good thing that succession is getting consideration by the Parliament after a very long lead-in. There are things that do need to be changed to be tidied and there's no doubt that the major substantive things require that serious consideration. I think that we said before that it would be better if this were to be consolidated into a single succession act and if the Parliament could see a way through to do that, in other words to do what is happening now with what is likely to happen in presumably the next session, that would be a very good thing to get it together. Indeed, well, I thank you very much for coming along, Mr Scobby and Mr Barr. Can I also again thank your previous witnesses and make the point to them that there's anything else that you now thinking you would like to add? We'd be very happy to receive written submissions on any issue at all. That will be greatly appreciated and on that point I think I'll probably just suspend the meeting for just a moment, please. Right, so welcome everyone back. We're now going to move to agenda item 10 and will return to the other items on the agenda. At agenda item 10, we're seeking information from the Scottish Government on delegated powers contained in the Land Reform Scotland Bill. The committee has seen the delegated powers memorandum and the written responses to the questions received on this topic and decided that oral evidence is required to scrutinise delegated powers provisions. Can I firstly welcome Rob Gibson, MSP, who is the convener of the Rural Affairs Committee, Rural Affairs and Climate Change and Environment Committee, who is attending this morning's session and will no doubt have questions to ask. Can I welcome from the Scottish Government Steve Sadler, who is the Head of Land Reform and Tenancy Unit, Kate Thompson McDermott, who is the Head of Land Reform Policy team, Billy Mackenzie, Head of Agricultural Holdings and SRDP, Fiona Leslie, who is an Agricultural Holdings policy officer, and Andrew Campbell, who is a solicitor in the Scottish Government's legal directorate. Good morning, one and all. Can I then invite questions from members? I think we're starting with John Scott. Thank you very much, convener, and I should first of all declare an interest as a farmer and refer members to my register of interests. My first question has a bit of a preamble, so if you bear with me and in your written response in relation to section 25, you cite as an example of a code not subject to parliamentary procedure the code of practice under section 48 of the Adult Support and Protection Scotland Act 2007. That is a code that applies to local authority officials and health professionals when carrying out their duties. Can you explain what, if any, are the consequences of failure to comply with the Adult Support and Protection Code of Practice and why is it considered that the procedure appropriate for that code is equally appropriate for the code of practice on agricultural holdings, given the clear effects and consequences of that code, those being that the land court must take relevant provisions of the code and reports of the tenant farming commissioner regarding breaches of the code into account in determining questions relating to agricultural holdings? Who would like to start? I'll answer that. In terms of the comparison between codes, we believe that each one has to be determined on its own basis. Each one is unique. We put these examples down to show that there are codes that either have statutory scrutiny or don't. It's just an example of an exact comparison. Each one has to be decided on its own merits. In terms of the tenant farming commissioner and their codes, the reason that we're taking the approach within the bill is that it's a non-exhaustive list, firstly. The tenant farming commissioner can decide to expand that list and tackle other issues. It's also arms length from Government, the tenant farming commissioner and the commission that it's going to be a part of. So it's an independent body that will have its own powers. The codes that will be developed, we believe that it's appropriate that the tenant farming commissioner has the time to develop them in full consultation with the industry itself. That is why we've taken the approach that we have in the bill. It's those range of reasons why the bill has the provisions that it has. We know that it's not a settled issue. We will listen to Parliament on this throughout the process. Codes of practice under the provisions inserted by sections 15 and 27 of the Wildlife and Natural Environment Scotland Act 2011 are known native species and deer management respectively are subject to the affirmative procedure for the first and replacement codes and to the negative procedure otherwise. Both codes are capable of having significant effects on individuals in the first case because failure to comply with the code may be taken into account in determining any question in judicial proceedings and in the second because SNH must have regard to the code in exercising its functions in relation to deer control agreements and deer control schemes. Why does the Scottish Government consider the approach to parliamentary scrutiny of the code of practice and agricultural holdings merits a different approach to that taken under the Wildlife and Natural Environment Scotland Act 2011? The difference there is that those codes do have ministerial approval or oversight of sums ups and ministers either do the codes or they have approval powers for the codes. The Tenant Farming Commissioner, the codes are for the Tenant Farming Commissioner and the industry to develop in consultation. I believe that that's the difference in terms of parliamentary scrutiny. One requires the approval of the Scottish ministers. The other one is for the industry to shape with the Tenant Farming Commissioner. I note that section 25.8 says that the land court must take the provision of the code into practice into consideration and account in determining various questions. Does that not put it in a slightly different place? It's being required that the law of the land takes us into account, so it has the force of law. We believe that it's appropriate that the court takes account of the Tenant Farming Commissioner's codes. They're not bound by it. They must consider it and exercise their judgment based on the law. We believe that there are aspects that are appropriate for primary legislation, aspects that are appropriate for secondary legislation and aspects that are best left to codes of practice that the industry shapes themselves. Ultimately, the land court is the ultimate decision maker on taking account of all that information and exercising their judgment. However, if I could put the counterarguments on the do this as an MSP, as a parliamentarian, if I've read that right, what you're suggesting is that it's for the courts to decide what it wants the law to be and whether or not it happens to like the guidance, whereas I would argue as a parliamentarian that it's our job as a parliament to decide what the law is and for the courts to implement that. We believe that we have got the balance right here between the different levels and the parliamentary process. We know that it's not the end point. We will listen to Parliament on this. The Scottish Government will consider all the points that committees and Parliament make, but we do believe that we have the balance right in terms of where the regulations, guidance, etc. should be pitched. Just to be a technical point, while clearly codes do not have the force of law, it's clear equally that they have force in law in that they can become a material consideration in what a court may decide in relation to some particular action. Therefore, that being the case, in other words, that the existence of the code has an effect on legal outcomes, albeit not the effect that primary or even secondary legislation would have, that it's important that such codes are considered at a parliamentary level to give them the necessary scrutiny because they are matters that will affect legal outcomes. As I've said, we do believe that the structure that we've put down is the appropriate balance and that parliamentary scrutiny is not required in this specific instance for the specific subject because of the reasons that I outlined. However, that is not the end of the process. We will consider all the points that are made. Do you forgive me? Are you agreeing or disagreeing with my fundamental point that the existence of a code will and is intended to have an effect on legal outcomes? The provisions in section 25 provide for the court to take the codes into account in determining questions. Obviously, that's rather different from the court having to take its decision always in relation to what the code says. The code is something that the court can take into account. It must not always follow what the code says. It's a matter for the court to weigh up in a given question the relevance of a code to the particular question that the court is facing. In some situations, it could well be a material consideration for the court, but in other cases, it might well not be. Fundamentally, do you agree with my core point that the code can affect legal outcomes? It's certainly something that the court can take into account when it comes to its decision. Sorry, I'm going to be right, so you're agreeing with me. It can certainly affect court outcomes. I think that that point is what might underlie this committee's expressing of you if it chooses to do so. Therefore, the codes should be subject to parliamentary scrutiny because there is a legal consequence of the codes, but that's a matter for the committee and not necessarily. I wonder if I could just pursue that point, because surely if a code of practice lays down a procedure for doing something—it doesn't matter what it is—and there's no other chapter or verse anywhere as to what the right way of doing that might be. Surely the court is absolutely bound to take the view that that code of practice is the right thing for the parties to have done because the court can't find any other answer if a code of practice has come forward from the industry. Surely if there's no other word out and around and there's no other significant history or the code of practice manifestly overrules history, surely that code of practice does become what the court will regard as good practice in the law? It's certainly good practice, yes. Where I would differ is in the interpretation that it binds the court in any sense. It's a code of practice. It's guidance. It's one of the things the court would take into account, along with many other factors, in deciding a particular case. It may well be, for example, that there may be reasons why, in a given case, that following the codes was not appropriate for the parties in that particular case, and so, in a situation like that, one would expect the court, yes, it's under an obligation to take into account the content of the codes, but it may well say that, in a situation, we're bound to take it into account, but we're not giving it much weight. Okay, but I would turn that round, I think, which is absolutely fundamental, which is why we want to tease this one out. Courts are used to distinguishing between the laws that used to be and or they see it in generality and the particular case in front of them, and I would expect the Land Court to be no different from that, but I'm still stuck with the general principle that if there is nothing to distinguish it, then the code of practice effectively tells the court what is normal practice, is what expected. It is, in a sense, written down the common law of that subject at that time, except that it happens to be a commissioner writing it down rather than a work of antiquity which says what the common law says. Why is it different in its effect in court? Well, there's a fundamental distinction between something which is law and which is guidance and the code is a strong form of guidance and that's the distinction. The court ultimately remains the arbiter in a given case as to the decision it wants to make. It will have the court as the forum in which parties bring all of the considerations of the case together. The code is one of those and the court must take into account that, but it doesn't necessarily follow that what is in the code must always be followed by the court. If providing codes of practice is good practice, as you identify and claim, why does the Scottish Government consider that it would be unduly burdensome for Parliament to scrutinise a package of up to eight codes of practice covering different aspects of the tenant farming commissioners remit? We scrutinise instruments many more than that on a daily basis every week, so to speak. Why would we not? In terms of the number, it could be more than eight. It depends on what the tenant farming commissioners in the industry believe is needed. In terms of the appropriateness of scrutiny, we believe that the information in the bill allows the Parliament to give the proper scrutiny to the overall issue and then leaves other aspects to the industry and the commissioner to sort out because of the technical detail and the necessary stakeholder consultation. That is the reason why we have some aspects in the bill so that there is scrutiny of the overall principles and approach. In other aspects, sometimes we leave it to regulations because we believe that there is still room for parliamentary scrutiny of some of the more detail. There are other aspects that are left out with legislation altogether because we believe that it is for the stakeholders, the industry and the commissioner to shape them. As a committee that scrutinises the fine print of the way we work, we sense a reluctance to subject yourself to scrutiny in that regard. The examples that you cite do not appear to us to generate to be entirely relevant. I would ask you again why we do not scrutinise eight or ten instruments a week on a regular basis? Why would we not be allowed to do that? I am not sure that I can add in in terms of what you are allowed to do. I think that that is for the Parliament to decide. You are asking a very reasonable question. We have given our response that it is not a reluctance for the Parliament to scrutinise what we will consider these points. I do not know if Steve is your one. I think that across the bill as a whole we have tried to take a balanced approach to various degrees of scrutiny. I am afraid that I do not have much more to say than that. I understand the points that you are making. I would agree with the points that Billy has made in response, but looking at the legislation across the whole, we have taken decisions up to a point on the type of scrutiny that we consider to be appropriate, and that they are in the face of the bill as it is now. Is there any reason why Parliament cannot seek to scrutinise any particular set of guidance if it so chooses, if there is some concern that the tenant-farming commissioner and his work requires that further scrutiny? If Parliament wishes to subject codes of practice to scrutiny, that is Parliament's choice. Yes. In other words, there is a choice as to whether the bill says that it will be laid or it will not, whether it will be scrutinised or it will not. However, there is a possibility when the tenant-farming commissioner is in place, given that he or she has got a status to develop these codes, that it is entirely incumbent on Parliament to be able to call in any of the decisions to debate here and scrutinise them. I am sure that that is the case. I guess what we are trying to establish is whether what should be on the face of the bill, and the Government officials have plainly given their view as to the balance as they are putting it. Our job is to question that, and we will see what the evidence looks like as a totality. I think that there is a question as to whether it should be ad-hoc or post-hoc. Should Parliament be involved before the code has force or it should be reviewing the operation of a code that is in force? I am not taking a view, but I would be interested to know what practical effect ad-hoc consideration might have on the ability in particular of the commissioner to respond rapidly. I am almost leading you to an answer, but I am not trying to. Does the arrangements that are proposed currently enable the commissioner to act rapidly in circumstances in which parliamentary prior approval might be required to inhibit? If you suggest that that is the case, can you give us an example? It is one of the reasons that you would want certain aspects to be left to the situation to develop a post-parliamentary process. There are some codes, for instance, perhaps around rental negotiations or how to take account of tenants improvements that are going to be very complex, very technical, have to have heavy input from assessors and those in the industry, and they might have to tweak it. They might get it wrong. That is a very uncertain area. That is one of the reasons why we are legislating because it is so uncertain. Some allege that. You could get it wrong with all the best will in the world, with all the engagement in the world, and you will have to take rapid action to correct that. That is one of the reasons. The potential for urgency could underlie the justification for Parliament not having the right to scrutinise before a code is brought in. Is that what you are suggesting to the committee? I think that every legislative process is a decision to make on what needs to go in primary, what needs to go in secondary and what is left for this type of situation. I accept the generality of that, but we are dealing with the specifics of this environment. It would just be mildly helpful if you could identify even one scenario where you think urgency might justify the commissioner acting in advance of parliamentary scrutiny and or approval. Rental situations would certainly be in that category. Rental negotiations can be spread throughout the year, and taking quick action if there is something that needs to be done quickly in those situations would prevent perhaps adverse effects on people who are going through. If it takes three months before a change can happen, all of those involved in those who would have wanted to be involved in that positive change will still have to go through the old system or delay until the new system is in place. That would be an uncomfortable uncertain territory. Rental negotiations would fall within that, tenants improvements would fall within it because those could potentially be used on a daily basis across the country—very technical—and could have a significant effect. That is another one that could fall into that category. In addition, the game management codes will be subject to an animal health disease outbreak in game birds. There would need to be a rapid response to that, which would be required potentially in hours and days, as opposed to weeks, because of the circumstances involved. If there was another bird flu epidemic, the codes of practice between the two parties might need to be significantly altered during that time period to protect the interests of both parties and to deal with the disease risk that accompanies that. The response that we are now getting is much more helpful in understanding your reasoning. I am not necessarily pre-empting the committee's view on the matter, but I can begin to see the justification. That is helpful. I wonder whether we can leave that subject to end. John Scott can take us on to the issue of right of access to information. Thank you. Convenient. I take you to rights of access to information in persons and control of land. We are unclear as to what the policy objectives are behind the need for such disclosure. We are also concerned about the article 8 in terms of ECHR, in terms of a legitimate and proportionate aim in that regard. Your written response to the committee states that the purpose in taking the power is to enable information about individuals who are making decisions about land to be made available where this information is needed to address particular practical difficulties by persons, including the owners of adjoining or related land. Is it not possible to frame the power with reference to access to information for a general purpose of resolving practical difficulties in relation to land? Why take such a broad power, if that is the policy intention that it is for? The direct response to the question is that the power set out in section 35.1 could potentially be framed in the manner suggested, although this is not the option that the Scottish ministers chose to go for. The power in section 35.1 is framed to make clear that the power relates to access to a limited set of information by a limited class of persons. Given the wide range of circumstances in which practical difficulties may arise and the very likelihood of broad differences from situation to situation, depending on the case, it was considered preferable to limit the scope to persons affected by the land rather than to limit to a particular circumstances causing the effect, but by limiting it to persons affected by land you would very much be limiting it to the circumstances in which a difficulty was shown that was affecting that person. We have attempted to narrow the scope in the way suggested, but just by using a slightly different formulation, because we think that in practice that is a preferable route to go down, it is going to require either a detailed definition of persons affected by land or definitions of what would be meant by practical difficulties in the circumstances that we propose to go down. Certainly, the Scottish Government considers that the provision as it stands adequately defines the scope of the power, but it would be open to considering the committee's views if they thought alternative wording would be more appropriate. Elsewhere in your responses, you suggest that the purpose in taking the power is to increase transparency and accountability. There is a word of land ownership. Is this additional to the purpose of enabling practical difficulties with land to be resolved in what you are telling me that it probably is? Potentially two sides of the same coin, in a sense. The purpose of the regulations to be made under section 35 is to provide greater transparency and accountability of landowners in the specific cases in which the provisions would apply so that practical difficulties can be better addressed. I take your point, but we understand that the vast majority of information about land ownership in Scotland is already in the public domain and may be accessed through the land register, the register of sassines or companies house. Why then is a power to access information about persons and control of land considered necessary and why is it considered necessary to enable individuals within a legal entity that owns the land to be contacted rather than the legal entity itself? We certainly agree that some information is indeed already in the public domain and some information can be accessed through various different public registers. However, there is not a comprehensive and accessible source of information on land ownership in Scotland and this was certainly one of the issues that was highlighted as a real concern by the land reform review group. Although, on a case by case basis, if you go to a lot of effort to look through what is in the land register or the register of sassines and then look at companies house, you can eventually piece together a picture of land ownership for a specific case, for a specific piece of land in Scotland, but it is quite a complicated process that needs to go through. I need to have some very basic understanding of company law, of charity law, because it requires quite a broad understanding of individuals to access all this different information and pull it together in a way that can be readily understood. In terms of looking at why it is necessary to look behind the legal entity, the right of ownership and land can be held by natural persons, obviously, and non-natural persons. Where the owner is an individual, it is generally very clear who owns the land, who should be contacted, and it will be the name of the person that is in the proprietorship section in the title sheet. It can be more difficult to establish who is effectively making the decisions about the land and in control of the land when the legal right of ownership is held in the name of a company or, for example, a trust. Most companies ownership structures are simple, but there are examples where the structures are far more complex. Examples where shares in companies are owned by other companies or other trusts, potentially in offshore jurisdictions that require no disclosure of any information. In those instances, trying to establish who it is that actually controls the land and makes the decisions over the land can be very difficult, if not impossible. While the legal ownership of land may be clear, if that is a company registered in offshore jurisdiction where there is no requirement to make any disclosures, or even one registered within the UK, but where the structure is just so complex that you cannot get much further than the first two or three layers, you have absolutely no luck trying to get a response from anybody on the issues that are affecting you, we would argue that it is very important to be able to look behind that legal owner and to find out information about who it is that actually has control over the land. We have just been dealing with the laws of succession, and one of the things that we have been talking about is the scale of the problem. How big is the scale of this problem that you outline that there is a need to know who the owners are and for the reasons of, shall we say, mending offence? This is one of the issues that was brought forward very strongly in the land reform review group support, and they were certainly convinced that there was a sufficient degree of information that this was a problem that needed to be addressed. We know that evidence from a number of stakeholders such as Community Land Scotland and DTAS would point to the problems that communities face in trying to address those situations. We have heard from stakeholders involved in wildlife crime issues that they find very difficult to work with or to get contact with landowners to try to address issues that may be affecting things such as wildlife crime or the environment. There certainly seems to be a broad spectrum of evidence from a broad range of stakeholders that those issues are significant. Who does the Scottish Government intend should exercise the functions of the request authority? The options for who will exercise the functions of the request authority are still to be assessed, and no decisions have been taken at this stage. As this is a new role, it will be necessary to consider which public body or organisation would be best placed to take on the role. Whoever takes on the role will be set out in the regulations. The Scottish Government's policy is to minimise the establishment of public bodies as much as possible. Therefore, the Scottish Minister would be attempting to find the best and most appropriate place for the function to be exercised within an existing body or department. On policy, where there is a legitimate privacy reason such as concerns over personal safety, then the persons in control of land will not have to supply information about themselves. Why does that restriction not appear on the face of the bill? In drafting the provision, the Scottish Minister did not consider it necessary to provide for the detail of the matter to be set out in the face of the bill. Rather, the regulation may compare and make specific reference to address the issues in section 352 of the GNI. It would be the Scottish Minister's intentions to consult on the privacy exceptions that will be required and how a person who needs a privacy exemption can ensure that it applies to them. Scottish Ministers were also of the view that it is essential to retain a degree of flexibility to ensure that those exemptions can be updated to act to changing circumstances to make sure that sufficient protection is always provided for persons who are artically interested and might be going forward. I find myself quite baffled by this whole concealment issue. Given that the valuation role shows the owner, the resident and the tenant. Given that the voter's role is publicly accessible, even if you are excluded from the published part of it. Given that if you are the owner of a ship or an aircraft, your details are published. Given that if you are a company director, your details are published. Given that, for the payment of a small fee, I can go into register house in Edinburgh and look at births, deaths, marriages and divorces wills right up to 12 months ago. Why in particular are we concealing the beneficial ownership in technical terms? I am not seeking to ask a policy issue in technical terms. When, in many other areas of public life, no such protection from identification is provided, where the effect on public policy operation is likely to be substantially less in those other areas, where that information is provided? Can I just clarify why we are not going further in requiring the disclosure beneficial ownership? Given that, your name and address has to be provided, valuation role, voter's role, ownership of aircraft and ships, companies, directors and information about your personal information, your antecedents and so on, is available to anybody who walks in and pays a modest fee? Why is that different? It is a balanced argument and there are lots of aspects that need to be taken into consideration. Certainly, the Scottish ministers have had to weigh up the interests and rights of all parties involved in that. I noted that the committee of papers referred to the corporate veil on our current structures and understanding of company law. At the moment, there is no concept of beneficial ownership in Scots law. Although we can start to consider looking further than legal entities, we need to make sure that there is a very clear evidence base as to why we are doing that and the circumstances in which we are doing that. What the Scottish ministers have done is to look at the range of evidence about why it is important to look beyond legal ownership and to look at concepts such as beneficial ownership and controlling interests and to try to bring together a range of provisions through section 35, section 36, completion of the land register and land and property information task force to look at exactly how we can improve and get better quality information in cases in which interests of all parties remain balanced and there is a good evidence base to establish why it is necessary to look beyond legal ownership. Concept of beneficial ownership. Why is it important for the Government to break new ground here and establish the concept of beneficial ownership? I understand what you have just said. I was just reflecting that it is not a general concept within Scots law, as it stands at the moment. It is a concept within English law, as I understand it, although I am not a lawyer, so I do not want to. Certainly, if you look at what is happening with the EU fourth money laundering directive in the Small Business Act that has been taken forward in the UK, then there is certainly a lot of understanding and looking at concepts of beneficial ownership, but for other purposes such as prevention of money laundering and tax evasion. They are generally well understood and legislated for concepts, but they are present in areas in which there are different policy aims and objectives than transparency and accountability of land ownership. I will take you back to the potential for further disclosure of information. Another question is that there may be circumstances where the information may have to be shared with third parties in order to resolve practical difficulties. Why, then, is there no provision in the face of the bill limiting the disclosure of information to third parties to circumstances where such disclosure is necessary to resolve practical difficulties? I think that the Scottish Minister took a slightly different approach on when it was most appropriate to apply this test, so they did not consider it necessary to limit the disclosure of the information about persons with control to the third parties once that information had already been provided to the person affected by land. There are a broad range of reasons and ways in which once the information has been provided to the person affected by land, they may need to use that information to try and address the practical difficulties that are being caused. As such, the Scottish ministers considered it preferable that the test be brought back a stage and that the test to make sure that the interests of third parties are protected would be taken before or as part of the decision about whether to release the information to the person affected by land at all. It would be very difficult to set up a system in which you could protect the information once released from becoming wider and more public knowledge. We felt that, in order to protect the interests of third parties, it was better to bring that test back to part of the decision about whether to even disclose the information in the first place. Forgive me, John. If I can just put that as I have understood it, ministers made by regulations bring forward a basis on which information, essentially about neighbours, can be disclosed on the basis that it will help to resolve some kind of issue to do with the neighbours and thereafter its public knowledge. It would not be the automatic assumption that it would become public knowledge, but it would be very difficult to control or contain that information once it had been provided. There is no expectation that it could be contained and therefore it does become potentially at least public knowledge. Your written response also confirms that significant aspects of the policy and disclosure of information, including crucially the meaning of persons affected by land, and the criteria for requiring the disclosure of information are still under development in consultation with stakeholders. Why should the Scottish Parliament confer power on the Scottish ministers to legislate for this matter when its purpose and indeed its parameters are not yet clear? The Scottish ministers are certainly of the view that the purpose and overall parameters of the regulation making power are clear by what is set out on the bill. The purpose of the regulations is to provide that we are a person, an individual or a community are being affected by issues connected to the land and there is a person who is in control of land, they should be able to obtain information about that person. In addition to the clarity that is hopefully provided by the drafting of the regulation making power, there is further information in the policy memorandum, the delegated powers memorandum, and an official response to the committee's written questions, which hopefully provide sufficient additional background and information on the purpose and scope of the proposed regulation making powers. The Scottish ministers consider it appropriate to carry out further consultation with targeted stakeholders on the detail of provisions and how the process will work in practice. That is why we have drafted the provision in the way that we have in order to carry out further consultation. Ultimately, for the Scottish Parliament to take the decision on whether section 35 should be taken forward as currently drafted, the Scottish ministers will be happy to consider the committee's views as well as those of Rackin Parliament and stakeholders during the process. Thank you. Finally, has the Government given any consideration to providing for this power to be subject to an enhanced form of parliamentary procedure? Yes. As with all the provisions throughout the bill, considering what procedure should be used, the Scottish Government has considered the two standard procedures for support and legislation affirmative and negative. The negative procedure was not considered appropriate for those regulations, given that there is a significant level of detail to be set out in the regulations. Therefore, we have adopted the affirmative procedure. In addition to that, we also stated quite clearly that our intention is to consult further with targeted stakeholders on the detail that is to be set out in the regulations. There is a requirement on the Scottish ministers to do so, set out in section 356. With the affirmative procedure and the requirement to consult, we had considered that that was a sufficient level of scrutiny to be provided for the exercise of the powers that are going forward. Thank you. That is all that I have got to say. Just turning to some of the response to the committee in one bit in particular, where you say it is. My interest is the keeper of the land register, that is the domain that I am seeking to ask my questions at. It is anticipated that information about an individual with a controlling interest will only be disclosed to the keeper with the consent of that individual. How can the keeper ask for that consent when the keeper is not permitted to know who that person is and of whom he can ask for consent? That is one of the areas that we want to consult in a significant level of detail with legal representatives and various stakeholders in determining. There are a number of options that have been considered from requiring the person who is making the application to confirm by ticking a box or signing a statement to say that they have obtained the permission of the third party up to a requirement on the keeper potentially to write to the third party to inform them and give them a chance to object before the information appears on the register. There are a number of potential ways in which that could be affected. What the Scottish Minister's intention is to work with stakeholders and those that are interacting on a regular basis with the registers to make sure that the most appropriate and least onerous procedure is used while obviously still making sure that the interests of the parties involved are protected? I can understand the issue of consent being withheld to the publication of the register, but your response says that it is talking about disclosing information to the keeper in the first place. If the information cannot be disclosed to the keeper in the first place, how can the keeper ask for and obtain or be refused consent? I am referring to what you have said to the committee where you have said that it is anticipated that information about an individual with a controlling interest will only be disclosed to the keeper with the consent of that individual. Therefore, the keeper itself cannot initiate the inquiry. It has to be a third party. Is that the implication? Yes, it is the intention that the applicant would be required to disclose the information and therefore it would be on the applicant to ensure that they had the necessary consents and to release that information to the keeper. Sorry, what I was referring to was the potential need for additional protections if they were required in order to make sure that there is no protection. Do you really think that in those circumstances anybody would give consent when they are not legally required? We do think that there would be quite a strong positive response to providing that information, certainly in engaging with stakeholders such as Scottish lands and estates. They have been very positive about their commitment to better transparency on land ownership, and we would anticipate that a number of applicants would voluntarily provide that information. Equally, just in terms of what is currently before us in section 48A2A through to C, which covers the category of persons or bodies into which a provider of land falls and information relating to individuals. However, the list is far from exhaustive about what the keeper may ask. When do you think that the list might be exhausting rather than not exhaustive? I think that there are probably broad areas and ranges of information where, ideally, we would love to ask those interacting with the land register to fill in numerous boxes and give us numerous amounts of information, because information helps to build evidence and helps to assess policies. There are broad ranges of use where that information can be useful. What we need to do is make sure that what we are asking of those who are interacting with the land register is proportionate and reasonable and does not add an undue burden on to applicants. The point of registration with the land register is obviously to obtain your real right, so that that also needs to be factored in. At the moment, on the basis of the work of the land reform review group from responses to the Scottish Government's consultation, from the Scottish Minister's own consideration of what information would be helpful to them, the two specific categories of land owner and information on control and interest are those issues that Scottish ministers consider to be most significant and most important in helping to build a better picture of transparency of land ownership in Scotland. As time moves on and as policies and laws in relation to land and even objectives of land reform develop over time, it was just felt that it would be important to have the scope to add in new categories in future, if they were found to be necessary or even to remove former categories if they were no longer considered helpful or relevant. It is not anticipated that this is something that will grow exponentially or at a great rate, but we felt that it was important to have the flexibility to make sure that we could address any future needs and keep what we are asking under review to make sure that it remains proportionate and useful. Equally, your response to the committee suggests that quite a lot of the information that might be sought by the keeper will already be in the public domain. Will the keeper of the power simply to incorporate that in the register without reference to anyone else? More to the point, will anyone have the right of veto of putting it in the register even though it is in the public domain? The provisions are very much based on voluntary disclosure. If you allow me to refer to the provisions. The moment that the provisions are very much based on the provision of information by the applicant on interaction with the land register, that was just considered the most proportionate way to go at this stage. I think that there would be significant burdens on the keeper to start trying to put in that information. It was fundamentally clear from the information that provided to the keeper that there might be scope to consider that, but Scottish ministers certainly do not intend to place a burden on the keeper that would involve them to go out and do any investigatory work to try to gather that information. Finally, initially, when we are setting the regulations about what the keeper's request can be, that is an affirmative, but subsequently the plan is to be a negative instrument. Given the uncertainty around that and the clear steer that we are getting as a committee that over the long term might be significant changes to that, would it not be more appropriate, given that subsequent instruments could entirely supplant the original that it should throughout its life be an affirmative instrument, because of the significance of what it might cover? Certainly, it is acknowledged that subsequent regulations could alter the regulations splancially, but they could not obviously make any changes to primary legislation without being subject to the affirmative procedure. As noted in the Delicated Powers memorandum, Scottish ministers consider that any subsequent exercise of the power to be inserted into the 2012 act is more likely to be amendment to the definitions contained in section 36 or even additions to the category of information on proprietors that may be collected. That should not be a change in the overall policy of providing regulations that allow the keeper to request additional information but will involve refinements to the definitions used in the regulations. If the Scottish ministers had considered that negative procedure would be more appropriate, the Scottish Government would of course be willing to consider the views of the committee and Parliament on this issue, should the committee take a different view from the Scottish ministers on that. I wonder if I can reflect on the difference between sections 35 and 36 and see whether I understand it correctly and maybe I don't. I get the impression that section 36 is to give the keeper a power to ask questions which over time might cover all the land in Scotland in a fairly comprehensive kind of way and clearly he wouldn't ask everybody the same question at the same time because that would be too much information. In contrast, it would appear that section 35 gives the power, the requesting authority, whoever that might be, the power to ask questions in what are very particular cases for particular purposes. Now, if I'm right in that and Nottinghead suggests that I am, then I'm just wondering how it is that we would expect Scottish ministers to be able to draw up regulations under section 35 which meet all those circumstances if it's, by definition, dealing with particular cases and whether, in fact, as a new case arises, it might be necessary to bring forward a new regulation to cover a bit of information that you might not have had to for the first one. I'm a writer in painting that kind of picture and, if I'm right, how comprehensive do you think the first set of regulations under section 35 might be so we're not having to permanently revisit them every time a case comes up? I think that the general description of the different aims and the provisions is correct. I think that they are aiming to achieve different outcomes, both very much relate to improving transparency and accountability of land ownership, but section 35 is very much focused on the compulsory requirement of information in specific cases where there is a harm that needs to be addressed. Section 36 is much more broad. It is about the voluntary disclosure of information across the broad remit of land ownership in Scotland and is much more intended to develop a better evidence base in terms of official statistics on patterns of land ownership throughout Scotland. The reason that section 35 has been drafted in a way is that it has, and certainly the wording of section 351 in the reason that Scottish ministers haven't focused on, limiting it to particular or practical difficulties, is to try to ensure that it's drafted in such a way that any situations in which there's a justifiable reason to require the disclosure of information going beyond legal entities, the regulations will be broad enough to encompass that. Should, in practice, that turn out not to be the case, then it's hoped that through making amendments to the regulations using affirmative procedure we can react quickly to that and ensure that they continue to be functioning. However, certainly the intention would be that, as first drafted, they should be sufficiently broad enough, while respecting the rights of parties, to cover the vast majority of cases in which it could be justifiable to require the compulsory disclosure of that information. If I've understood you correctly, you would expect the powers to be very widely drawn, but the purpose to be very narrow. Thank you. I think that that takes us forward to John Mason on 19. Thanks, convener. The area that I want to touch on is section 79 and the conversion of the 1991 act, tenancies into modern limited duration tenancies. So, I mean, I've got a series of questions. The first one, though, basically would be, can you explain what is, why it's considered necessary to have this power to permit conversion from the one to the other? And, you know, link to that, is there an underlying policy justification for this? Why we believe it's appropriate to legislate to allow conversion, we had a review group that explored the overall issue of tenencing sector and what we needed to do to make sure that it continued to be vibrant and also it continued to have new entrants entering the sector and people progressing up the farming ladder. It's one box of solutions for the overall agricultural sector and the rural economy. It's an important aspect of that. The review group found that the current situation— I mean, I'm not, I'm not. Sorry, I was just going— Sorry, I was just going— That was kind of the overall intro into the situation, maybe a bit too much, but— The review group found that the current situation wasn't satisfactory in terms of allowing people an exit out of the sector, an effective exit out of the sector. So there were people sitting in 1901 act tenancies that were going to remain sitting there, the farm was going to be run down, the opportunity for them to exit wasn't attractive enough to give them a dignified retirel and that blocked people coming into the sector as well. So it was a static situation, it was getting worse. The solution to that was proposed was conversion. So that the tenant could have an opportunity to convert a tenancy, sell it on the open market, get some financial reward, et cetera, out of that and then new entrants and those progressing up the farming ladder had an opportunity as well. So we were expanding the diversity within the agricultural sector, the resilience of it. They proposed conversion and they proposed that there was a term with it. They recognised with that recommendation that there were issues that the Scottish Government would have to resolve, particularly A1P1, the balance of responsibilities rights, et cetera. That is what we have been doing and we will begin in terms of detailed consultation with stakeholders once we have worked out the pros and cons of all the solutions. That is why we believe that that is appropriate to take action. Now we are working out the precise detail of that action. Okay. It does come across as quite wide. Would it, in fact, be the case that all 1991 act tenancies could be converted? That is the intention that 1991 act tenancies could be converted depending on the exact solution that we end up developing with stakeholders. I couldn't come down completely and see the range of circumstances because there are options around this. Did I hear you correctly when you said just now that if they undergo such a conversion, then those tenancies could be sold on the open market? I think that those were your words. That is the intention. There is detail around that that we are still exploring but that is the intention, yes. So this is a new concept then to be able to sell a tenancy on the open market. The problem that has been identified just now with 1991 act tenancies is that for some there is not an attractive exit out of the sector so that they can remain within their tenancy and the tenancy gets run down and the farmers in a situation that they do not want to be in and there are other people who cannot get into the sector because those tenancies are tied up. It is one of the issues with the sector. Okay. So just to clarify then, it is because of this overall log jam that there is this whole concept of converting the tenancies so therefore you wouldn't need to have a specific reason that some of the tenancies could be converted and some couldn't because basically potentially affects all tenancies, is that right? It's an overall desire to have that flow within the system. Can I just explore that and let's be clear I have a constituent who is in precisely the position that you've just mentioned. Probably aren't a huge number of them but they just have to be dealt with I would respect. Are we looking at a situation where all 1991 act tenancies can be converted and the condition is essentially who decides they want to or are we in a position do you think where in principle they or could be but subject to conditions which are not the choice of either one or the other party but actually might be some condition as to the current state of that lease or successes? Yeah, I'd say both of them are possible directions that the second one of there would be certain conditions that may have to be met is possibly more of a valid option to address the policy issue but I stress we're still working through the policy options the pros and cons of them making sure that we're getting this balance right in terms of A1P1, ECHR so I couldn't land on exactly where it's going to go at this point nor should I. First of all in relation to the concept of selling the tenancy what we really mean there is allow the tenancy to be assigned to another person so it's as a nation rather than a sale of a tenancy. Yeah so I think it's a sale of a tenancy it's just I think kind of the accessible language that we've kind of gotten used to using ability to describe it but ultimately it's a signation that would be permitted. Secondly in terms of the in terms of the regulations in a sense we're getting into as Billy has mentioned kind of hypotheticals until the consultation has been done it's difficult to know where to draw the lines what conditions one might add one which ones might not be necessary because ultimately article one, article one does require a policy evidence base for what's done for something to be A1P1 compatible we need to have an evidence base so until that's there it's difficult to give a kind of an even in the abstract unfortunately a view that the power might say this or it might say that you know it might be used in a particular that way and I appreciate that the power is is widely framed and nobody's disputing that at all. Oh John thank you I can't help the feeling though that if you're that far back in the consultation process then I'm just wondering why this is even on the face of the bill at this stage. I think the rural affairs committee