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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 8 August 2025
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Displaying 418 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

How would you propose to tackle that in the bill, if I can put you on the spot?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

I move us on to sections 65 and 66, on expenses of litigation and application. Although the Law Society is supportive of the bill overall, it seems to be very concerned about the current policy that underpins section 65, which provides principles to determine how legal bills are paid for in trust cases. The Law Society thinks that section 65 will deter people from becoming trustees and might lead trustees to settle unfavourably or to abandon legal proceedings for fear of personal liability. It would be useful for the committee to hear whether you share the concerns of the Law Society or can offer the committee reassurance on that point.

A related question is whether you think that the availability of insurance helps to mitigate the risks that have been identified by the Law Society.

We can start with Ross Anderson again and work round the table. As I am attending remotely, it is not easy for anyone to catch my eye. I can leave it to the convener to bring witnesses in, if that is preferable.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

I will move us on to sections 16 and 17 of the bill, which look at trustees’ powers of investment. I think that the question will be to the whole panel; perhaps Ross Anderson could start off and we can work our way around.

The Law Society of Scotland and the academic Yvonne Evans have suggested that, in view of Scotland’s increasing emphasis on net zero goals, sections 16 and 17 could be amended to allow trusts to adopt environmentally friendly investment policies, particularly when those might underperform compared with other investments. The committee is interested to hear the panel’s views on that policy idea. If you support it in principle, do you think that the drafting of sections 16 and 17 would need to be tweaked or amended to make it clear to trustees that they have the power to make such investments, even when they might underperform compared with other investments?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

As the convener said to the previous panel, if any witness has any suggestions, thoughts or ideas that they would like the committee to follow up, we would be very grateful to receive them.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

I will move us on to sections 65 and 66, which cover expenses of litigation. The Law Society has raised concerns about the current policy underpinning section 65, which provides principles to determine how legal bills are paid for in trust cases. It says that section 65 will deter people from becoming trustees and may lead trustees to unfavourably settle or abandon legal proceedings for fear of personal liability.

Some of the witnesses might have heard our discussion about that with the previous panel of witnesses. We would be interested to hear from the witnesses who are not representing the Law Society whether they share the concerns that it has raised with us or can offer the committee any reassurance. We would also be interested to hear from all panel members whether the availability of insurance might help to mitigate the risks that the Law Society identified.

Would Laura Dunlop like to kick us off?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

I want to put you all on the spot and ask how that would work in practice. Would it require a formal separation agreement? The sound cut out slightly when Ross Anderson was speaking, but I thought that I heard him say that it would be helpful but impossible. I am interested in understanding how we might be able to make such a distinction work.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

There have been different views, which makes me question whether there should be clarification or an explicit line in the bill to say that that approach is perfectly permissible and within the powers.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

Would it be possible to allow a case-by-case approach to be taken but to still be clear in the bill that that is an option for those trustees who are interested?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

No, thank you, convener.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

Thank you very much. I will hand back to the convener.