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I will bring in Michael Paparakis to answer that question.

We took the recommendations from the Scottish Law Commission but if the committee wants to make any suggestions in its stage 1 report we would be happy to consider them and talk to the SLC.

We will look at that further and get back to the committee.

Complete codification of any area of law is never a straightforward task. The SLC considered codification of the law but ultimately rejected it. Its view, as Lord Drummond Young told the committee, was that some areas of the law are better left out of statute—for example, the somewhat abstract dual patrimony theory that underpins trusts and the law around express or implied trusts.

The bill reforms all the parts of Scots trust law that have traditionally been dealt with by statute, and it consolidates and modernises nearly all the statutory trust areas. I am content that the SLC, after extensive consideration of the issue, has identified the right approach in the bill, which focuses on reforming those parts of the law that create problems in practice.

I understand the view that comprehensive codification would make it easier for a layperson to access and understand the legislation. However, as the SLC suggested in its evidence, in other jurisdictions where codification has taken place, the statutory law is seldom absolutely comprehensive.

At this stage, no, we are not. Setting out a statutory style in primary legislation is not necessary or helpful, because, as I have said, it can become outdated and difficult to update. The original 1921 act had only two straightforward styles. A style might give the layperson a misplaced sense of confidence that their do-it-yourself trust deed is fit for purpose when that might not be the case. Style books are produced and maintained by professionals based on their experience of contemporary practice, and the SLC was right not to attempt to take on that task.

It is the Scottish Government’s view that there should be a default time period that must elapse before the proposed jurisdiction can be exercised. The 25-year limit was chosen because that section of the bill is intended to deal predominantly with long-term trusts and the problems that can arise in relation to those.

The SLC considered that 25 years provided an easily workable default route that represented a short generation. A default time limit also helps to avoid the risk that family members who are unhappy with a trust might mount an early application to have the trust’s terms altered before any material change of circumstance has occurred.

The 25-year limit cannot be extended by a truster, but a truster can shorten that limit or do away with it altogether. I have heard evidence from stakeholders on the matter and, although some have suggested that 25 years is too long, none have suggested an alternative time period.

I will consider any recommendations that the committee makes in its stage 1 report, including any alternative recommended time limit.

The Scottish Government consulted back in 2016, and the changes that will be made by the bill received the backing of an overwhelming number of consultees. I understand that the Law Society has made a drafting suggestion that, in its view, would resolve the problem that has been identified. My officials are currently considering that. However, any test could come with its own set of problems.

The committee has heard from stakeholders that certainty is an important feature of Scots succession law. The provision provides certainty, and the definition of separated spouses risks creating unwelcome uncertainty. Any definition risks—however remote some might consider the risk to be—disinheriting spouses who are living apart only because they are prevented from living together. That might include couples in which one of the spouses is in long-term care or prison. Separated spouses can already avoid that problem altogether by preparing a new will, updating their current will or preparing a separation agreement. The change that will be brought about by the bill will be limited to cases in which there is no will and no children. The suggested change would be at odds with the position under the law of succession, whereby a will that is not changed following a couple’s separation will continue to be given effect up until the parties’ divorce.

There are unanswered policy questions about the proposed alternative approach. For example, it is not clear whether a separated spouse would still inherit some of the estate—but only after the deceased’s parents or siblings—or whether the separated spouse should not inherit anything.

As I have said, my officials are considering the issue at the moment.

If the committee would like to write to me to make recommendations at stage 1, I would be happy to take those to the SLC to discuss.

That could be quite difficult to do, but I am willing to consider that and speak to SLC and my officials regarding that.

On the interaction with the Charities (Regulation and Administration) (Scotland) Bill, charity law and trust law are two distinct and well-established areas of Scots law. That point was made separately by Lord Drummond Young and John McArthur in their evidence to the committee. We know that 12 per cent of charities that are registered in Scotland take trust as their legal form, and those charities are subject to both charity law and trust law. Otherwise, there is a range of other legal forms that charities can take, which include a company, an unincorporated association and a Scottish charitable incorporated organisation. Charitable companies, for example, must comply with charity law and company law, and trust law is of no relevance to them.

OSCR has written to the committee and welcomed the bill. It has said of the trustee’s duty of care, for instance, that it fits with

“the standard of care expected of charity trustees when managing the ... charity”.

My view is that the two bills complement each other and work well together, and that the modernisation of trust law is helpful for charities that take trust as their legal form.