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Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 22 April 2025
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Displaying 1351 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

I will work with officials and report back to the committee.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

The SLC proposed that its recommendations be given effect by the amendment of sections of the Court of Session Act 1988. However, those sections were repealed back in 2014, at around the same time that it published its report on trust law. It is not our intention to do away with that useful method for trustees to obtain advice on administrative difficulties that are encountered in a trust, and the repealed provisions of the 1988 act were replaced by a much wider and more general power for the court to determine its own procedure, which could include powers to give directions. That is why the relevant section was removed from the SLC’s draft bill for introduction.

Officials communicated the decision to remove the provision from the SLC’s draft bill to the Lord President’s private office when the bill was introduced. I have listened to the views of various stakeholders who have given evidence to the committee—in particular, to the view of the senators of the College of Justice—and I am happy to take the matter away and consider it further.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

You raise some valid points. We are happy to consider them.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

OSCR has had the power to appoint an interim charity trustee since 2010. The Charities (Regulation and Administration) (Scotland) Bill will simply extend the circumstances in which OSCR can appoint interim charity trustees. That power is not new.

Similarly, the Court of Session has long-standing powers in trust law to appoint trustees. The power in section 1 of the bill simply replaces the existing power of the court to appoint trustees, and that is not new, either. That can be done following an application from OSCR where there is misconduct, or where it is necessary to protect charitable assets.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

I will bring in Michael Paparakis, if I may.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

I ask Michael Paparakis, who has worked on the bill during its history, to comment on that.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

I thank Mercedes Villalba for her question. The bill uses a familiar definition of “incapable” that is very similar, but not identical, to the one found in the 2000 act. The committee has, rightly, pointed out that significant and far-reaching changes have been recommended for mental health legislation.

I agree that it would be undesirable for the meaning of “incapable” in trust law to differ from the usual widely understood definition, and I see merit in making sure that the bill does not diverge from the general law on capacity and that it keeps pace with any changes in that area. As a result, I am willing to work with the committee and the SLC to explore how that can be done. I have also asked my officials to look at possible solutions, whether that be adopting the definition of “incapable” used in the adults with incapacity legislation by conferring a regulation-making power on Scottish ministers to alter the definition of “incapable” in this bill or by some other means.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

You have raised a really valid point. We will go away and consider it, and we will get back to the committee on that point.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

My understanding is that it will be sent to the SLC, but Michael Paparakis might have more to say on that.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

You have raised some valid points and I am happy to take that into consideration.