Seòmar agus comataidhean

I am interested in sections 25 and 26. Concern has been expressed to the committee that trustees’ duties to provide information to beneficiaries and potential beneficiaries under those sections are too onerous and that the extent of the duties is uncertain. Do you want to share your views on the provisions, particularly if you have concerns? I am interested in how you would change the sections to address those concerns.

I want to move on to section 61 of the bill, which gives power to the beneficiaries and others to apply to the court to alter the purposes of a family trust where there is a material change of circumstances. The section sets out the default position that that power cannot be used for 25 years. Is having such a 25-year restriction the correct approach? We would be interested to hear your views on that and your reasoning.

Touching on that point, but more broadly, on 9 May we heard from legal academics including Professor Gretton and Yvonne Evans, who said that, in practice, a solicitor would just “draft around” a 25-year provision. This question may be for Chris Sheldon and Mike Blair: are we worrying too much about it? Would most trusts be drafted to give some leeway in relation to purpose?

The policy concern stems partly from the fact that lots of people who interact with trusts might not be familiar with the law and court proceedings. I guess that the point is that, if someone was looking at taking on responsibilities for a small charitable trust or interacting with a trust of relatively modest size, the fact that they might become personally liable could put them off.

I will ask a final question about something that I have thought of as you have been answering questions. Would there be merit in putting in the bill an exemption from personal liability when people act in a charitable capacity or when a trust is relatively modest?

To be absolutely clear, it is a deliberate approach.

Thank you for that. I will also ask about the role of the Court of Session compared with that of local sheriff courts. I know that there are some expanded powers for sheriff courts. Will you explain the policy thinking around retaining the Court of Session as the main court for the bill, given that it is traditionally more expensive and less geographically accessible?

The submission is on the Parliament’s website, but I am sure that the committee clerks would be happy to send it to you. I am sure that, like me, the committee would be interested if you wanted to review the Law Society’s points. Having seen many Law Society submissions on various bills, I think that its comments on section 65 seem quite strong. We would greatly appreciate any feedback that you have.

I want to ask about litigation expenses and, in particular, the Law Society’s concerns about section 65. The Law Society was quite outspoken on that, citing

“a severe danger of a conflict of interest”

and describing section 65 as

“quite a radical provision”,

which, it suggested, may deter people from becoming trustees or lead them to unfavourably settle or to abandon legal proceedings for fear of personal liability. Do you have any comments in response?

You would recognise the risk for parliamentarians and the Parliament in seeking to proceed with the legislation. If you read its submission as a whole, the Law Society is generally quite discursive about the bill. When I see words like

“severe danger of a conflict of interest”,

“radical provision” and “real issues”, it starts to worry me that the balance might not be quite right.

The Law Society also points out that non-recovery is a standard risk of litigating. I am thinking of examples where people take on roles in charitable trusts, not expecting that their personal property might be at risk if they proceed with litigation. I hear what you are saying about what the court “may” do, but if someone is taking legal advice it should be clear that there will always be a risk associated with that. I am just trying to satisfy myself that the bill strikes the right balance.