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Chamber and committees

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 June 2025
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Displaying 1442 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 do not. I refer to the SLC鈥檚 recommendation.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

I think that one of my officials on the legal side鈥攑erhaps Jamie Bowman鈥攚ould like to respond.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

Yes. So far, we have had positive engagement with the officials at the Office of the Advocate General, the Scotland Office and other United Kingdom Government departments on using a section 104 order to apply the bill鈥檚 provisions to pension trusts.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

Scottish Government officials who have been working on the bills are aware of the provisions in each. Trust law is relevant to charities only where the charity takes the legal form of a trust. Therefore, the bill will not impact on all charities. Generally, trust law and charity law operate in parallel, as is the case where charities take other legal forms, such as companies. As both bills progress through Parliament, officials will continue to work closely together to consider the ways in which they interact.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

I am very willing to work with the committee on the issue. I am committed to introducing reform that would prevent a person who has been convicted of murder from being an executor of their victim鈥檚 estate, and my officials and I will explore what can be done in the context of the bill to ensure that that happens.

As the committee is aware, the Scottish Law Commission did not produce recommendations on the matter, so the bill as introduced does not mention it. There was consensus on the matter when the Scottish Government consulted on it in 2019, which is why we are committed to introducing reform at the next legislative opportunity. The existing law is not clear.

I understand that Professor Paisley has written to the committee with his view, but that the leading academic textbook on confirmation of executors appears to take a different view. Depending on questions of scope, the bill could be used to bring the needed clarity. My officials and I are actively considering the issue. Recently, the SLC announced that it will look at executory law in its eleventh programme. I will consider our approach in the light of that announcement.

It is important that whatever is taken forward is capable of working in practice, because we do not want to have a situation in which the deceased鈥檚 estate cannot be administered or the administration of it is called into question. That is not to say that the bill does nothing. Section 6 will make it more straightforward to remove a murderer from the role of executor, and the jurisdiction is extended to the sheriff court. However, I reiterate my commitment to introducing reforms that would prevent a person who has been convicted of murder from being an executor of their victim鈥檚 estate.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

I do not think that the bill is going to produce much litigation鈥攃ertainly not in the long term鈥攂ut I recognise the cost issue. I am sorry, but I do not have information on that in front of me.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

No. It is still under consideration.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

We will work together to ensure that that is clear.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

The SLC consulted on that issue, and its allocation of jurisdiction between the courts met with general agreement. Currently, most trust litigation is conducted through the Court of Session, while some matters, such as appointing and removing trustees, can be heard in the sheriff courts. The bill expands the types of cases that can be considered by the sheriff court.

Trust litigation is a technical and specialised area that requires considerable expertise at judicial level and among those who present cases. There is a designate trust judge at the Court of Session who has the level of specialism that is required. The bill takes a balanced approach, conferring jurisdiction on the sheriff court where practical but ensuring that complex matters will be dealt with by a single court that has sufficient expertise to ensure consistency in decision making. The SLC looked at other legal systems and found that other countries similarly ensure that trust cases are dealt with by specialist judges who have appropriate expertise.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Siobhian Brown

We are going with what the SLC says at this stage, but we are open to consideration.