Seòmar agus comataidhean

Has the Scottish Government done any analysis of the reasons why fewer people are coming forward as trustees?

The evidence that we have taken says that there is an issue in that respect.

Minister, just for clarification, are you saying that at the moment you are not intending to have any style documents in the legislation or to add or take away any definitions in the bill?

Thank you.

Again, I want to push back on that. I think that the question about jurisdiction was answered by the SLC when it said that, if there were any question about jurisdiction, the case would come to Edinburgh sheriff court. That is clear. It might well be the case that people want to go down the Court of Session route, but I am not sure why we cannot give them the choice and trust solicitors to make that choice.

One of the key themes of the written responses to the committee’s call for views—and it was also mentioned by some of the witnesses who appeared before the committee—was the importance of the legislation being as accessible as possible to trustees and beneficiaries without legal backgrounds. Most people who do the job do so on a voluntary basis and do not have an understanding of the law.

Ideas that the committee has received to enhance accessibility include drafting changes, including improving or adding to definitions in the bill, as has already been mentioned; Government guidance; a publicity campaign; and style legal documents for the benefit of trust users. In the light of the views that have been expressed to the committee, can the minister describe the measures that the Scottish Government intends to take to maximise the accessibility of the legislation to its users?

Good morning to you, minister, and to your officials. I wonder whether I can just briefly follow up that point. I think that, in the evidence that we took, the preferred model—although it was not preferred by everybody—was that the definition would simply refer back to the 2000 act. Can you give us a wee bit more information on what would be the advantages and disadvantages, from a Scottish Government perspective, of using that particular model?

Okay, thanks.

The concern that we heard in evidence was about how to know that someone was incapable. People’s capacity can come and go, and the worry is that the decision might come down to four or five people sitting around a table who have no medical training but are concerned that an individual might not have capacity. You are asking people who have no medical knowledge or perhaps no legal background—smaller trusts might have to take legal advice—to take on a large responsibility, and concern was expressed about putting a lot of pressure on volunteers to make medical decisions.

The problem is that they need the individual’s consent to get a medical report, which might mean the trustees having to persuade the person in question, who might say that they are quite capable. If that person says no, the trustees have no power to take it further.

Okay—I will move on.

The Scottish Law Commission told us in evidence that an aggrieved trustee who wanted to challenge a decision on their capacity could use common law to go to court. You have already mentioned that, but do you think that that sort of thing should be explicit in the bill instead of just being left to common law?