Seòmar agus comataidhean

Good morning to the panel. You have the advantage of knowing what questions we asked the previous panel. I hope that we can make progress.

You will be aware that I said to the previous panel that the bill has some new powers for sheriff courts, but the main powers predominantly still lie in the Court of Session. Do you have a view on that? I will start with Laura Dunlop, on behalf of the Faculty of Advocates.

That tees up another question. The panel of academics who gave evidence last week suggested that, instead of putting exact wording into this bill, it could just refer back to the 2000 act. That would mean that, if there were a change to the 2000 act, it would therefore immediately change the definition in the bill. Is that solution workable in practice rather than as an academic view?

So, in practice, that would work for you on a day-to-day basis.

How does that then relate—or does it relate at all—to the Charities (Regulation and Administration) (Scotland) Bill, under which the Office of the Scottish Charity Regulator can appoint interim trustees if no trustees are capable of working? If a trustee needed to step down and they were incapable of doing that, would OSCR not temporarily appoint an interim trustee to keep the trust going?

I will move us on again. A trustee, as you will be aware, does not get to participate in trust decisions under section 12 when they are incapable. Trustees can also remove a fellow trustee from their role on the basis that the trustee is incapable. The risk of abuse of those provisions has been highlighted by the Law Society and other legal stakeholders. The academics who appeared before the committee last week were more relaxed about that possible risk. From more of a practitioner’s perspective, are you concerned about that or happy with it? Is there anything that you would want to add to the bill on that?

A concern among last week’s panel, because the domicile rules could be unclear, was about what will happen when a foreign national sets up a trust then disappears to another country. In practice, are you dealing with that issue? The issue is to do with someone who is not domiciled in Scotland setting up a trust then running it from another jurisdiction.

Yes.

The Faculty of Advocates and others have said that they think that the power in section 67 to give directions to the court needs to be much wider. I would be interested to get your views on that. Does the power need to be wider, or is the provision about right? Are you happy with the position as it is?

Can I just clarify a point in that respect? What if, say, one person from a couple goes into a care home for a long period of time? What happens in practice at the moment? In such cases, is any thought given to putting something in writing? If someone has been in a care home for three or four years but the other person is living at home, how do you deal with that in practice so that people do not lose out?

Picking up on that final point, we raised that with the Scottish Law Commission when we took evidence a couple of weeks ago. Its representatives were slightly sceptical of that concept, but it might be worth looking at again.

I will move on to section 67 of the bill. The Faculty of Advocates and others have said that they think that the power in that section to give directions to the court needs to be much wider than the one that currently appears in the bill. Would the other witnesses like to comment on that assessment? I will then ask Laura Dunlop to defend that position at the end.