 Felly, gydag i ddweud i ddechrau i ddweud am eich grif положau a partair o ffordd mewn cymdeithaeth, gyda ddaeth ac i ddigwydd liedau wneud mewn cyfrodd penderfodol a oedlai. Fe fyddwn i ddweud i gyderwouthaf nodi i Llyfrgell sponsored mewn cyffredinol. Felly, mae'n ddweud i ddweud i ddweud ei ddechrau, mae'n ddweud i ddweud ei ddweud i ddweud i ddweud i ddweud i gwensaeth oherwydd i ddweud i ddweud i gweld trafen arwain, The first item of business is the declaration of interests. In accordance with section 3 of the Court of Conduct, I invite Rhoda Grant and MSP to declare any interests relevant to the remit of the committee. Thank you, convener. I don't think that I have any relevant interests, but I would just for the record say that I am a unison member and a member of the co-op party. Thank you very much for that, Rhoda. The next item of business is to decide whether to take item 7 in private as a committee content to take this item in private. Under agenda item number 3, we are considering two instruments subject to the affirmative procedure. No points have been raised on the draft social security information sharing Scotland amendment regulations 2024, SSI 2023 draft, and the draft council tax variation for unoccupied dwellings Scotland amendment regulations 2023. Is the committee content with those instruments? Under agenda item number 4, we are considering two instruments subject to the negative procedure. No points have been raised on SSIs 2023, 311 and 312. Is the committee content with those instruments? Under agenda item number 5, we are considering two instruments not subject to any parliamentary procedure. No points have been raised on SSIs 2023, 310 and 333. Is the committee content with those instruments? Under agenda item number 6, we are considering the trusts and succession Scotland bill at stage 2. I ask members to refer to their copy of the bill, the marshaled list of amendments and the groupings of amendments. We are joined today by the Minister for Victims and Community Safety, Siobhan Brown MSP and four Scottish Government officials. I can remind the ministers officials that they cannot participate in any stage 2 proceedings but they can communicate with their minister directly. We have a number of amendments to consider and dispose of for this bill. If the votes are required today, I will call for members to vote yes first and then call for members to vote no and then for any abstentions. Members should do so by raising their hand. The clerks will collect the vote and pass the vote to me to read out for the confirmation of the result. I will take stage 2 slowly so that we can have time to manage the process properly. The first set of amendments to section 1 is the appointment, resignation and removal of trustees. I call amendment 52 in the name of Jeremy Balfour, grouped with amendments as shown in the groupings. Jeremy Balfour to move amendment 52 and speak to all the amendments in the groupings. Thank you, convener, and good morning to you and good morning to the minister and to colleagues. Before I go into detail on this amendment, I just put on record my thanks to all those who have engaged with the committee, both at stage 1 and in written evidence, and also for those who have been in touch with me around amendments to this bill, and in particular my thanks to the Law Society of Scotland who have been very helpful in the work that I have been working on. In regard to amendment 52, this would be to leave out in section 1, page 1, line 12, the word expedient and insert necessary. The effect of this amendment, convener, would be to provide that the court may appoint an additional trustee under section 1A only if the court considers it necessary to do so. The reason for bringing forward this amendment this morning is to allow a court to appoint an additional trustee where it considers it expedient to do so as it represents a weakening of the common law position here in Scotland, which refers to the word necessary. This amendment would simply reinstate the position as it is in the common law in Scotland at the moment and we would not seek to change that, and I think that it has worked well over the last number of years and does not need altered at this stage. In regard to amendment 53, the amendment clarifies the mere nomination of a sole trustee does not take that individual a trustee unless they have accepted the office in writing or after intimation of the appointment have acted in a fashion which indicates that they have accepted the office as a trustee. The reason for this is very practical that a group of trustees could, in theory, unless we put in this amendment, have somebody as a trustee who does not want to do the job or is not ready to do the job. The office of trustees should not be forced on a sole nominee who has not accepted that office and who does not wish to do so, and in my view that person has to give their consent to it and this amendment simply clarifies that area of law. In regard to the other amendments within this grouping, I look forward to hearing what the Scottish Government has to say on them before responding to it. Thank you very much. I ask the minister to speak to amendment 1 and other amendments in the group. Good morning committee and thank you convener. Firstly, turning to the amendments in my name which is amendments 1, 2, 3, 44 and 45 are a package aimed at increasing the safeguards of sole trustees. This was a particular concern raised by the committee after hearing evidence directly from trustees. Amendments 1 and 2 prevent resignation by a sole capable trustee unless they first assume an additional trustee or a judicial factor is appointed to administer the trust. That will prevent a sole capable trustee resigning their role and leaving only an incapable sole trustee. Section 5 of the bill as introduced contains a default rule that trustees will have the power to resign office subject to some exceptions. The power of resignation is more expansive than existing powers under the legislation but there is no procedural requirements for trustee resignation such as a requirement for intimation of co-trustees. Amendment 3 makes clear that trustees must intimate their resignation to co-trustees. This will prevent situations where one person is left as a sole trustee without their knowledge. The amendment sets out that trustees require to intimate their resignation to all other trustees who are traceable or any judicial factor with the resignation being effective from the date of intimation. Amendments 44 and 45 make necessary consequential adjustments. Trusts are used in a wide variety of circumstances and it is important that the general law on trust does not hinder the flexibility of trust to provide a solution to a wide range of problems. Ultimately, whether a sole trustee is appointed is a matter for the trustee who determines how a trust is to be administered. There may be valid reasons for the choice of appointing a sole trustee and the person who is best placed to decide this would be the trustee. While appointment of a sole trustee carries potential future difficulties for the administration of the trust, this is a matter best left to an informed trustee. Taken together, however, these amendments give an added protection to trusts where a trustee has chosen to use a sole trustee or circumstances have led to there being a sole trustee of a trust and address the concerns raised by the committee at the stage 1 report. Amendment 6 responds to significant practical difficulties that co-trustees may have in removing a trustee who was appointed as a trustee in their professional capacity and is no longer a member of their profession, but does not meet the criteria set out at section 7.1 of the bill as introduced. The matter comes to light following the failure of Mclew's solicitors, where the Scottish Government has heard that trustees appointed in a professional capacity will only agree to resign office in exchange for payment of such money. The sum may be just short of the legal costs which the trust property would likely incur if a court application to remove a trustee was raised. Together, this potentially leaves co-trustees and beneficiaries in a difficult position and the administration of a trust may grind to a halt with all the difficulties that this may cause. The bill introduces an important distinction between lay and professional trustees, and I believe that it is important that the trustees who are appointed in their professional capacity are held to a different and higher standard than lay trustees. While the bill cannot resolve wider issues caused by the collapse of Mclew's, we can learn lessons about failure impacts trusts and their management. Amendment 6 adds to section 7 of the bill on removal of trustees by co-trustees in narrowly defined cases. As provided by subsection 1A to be inserted, a trustee who is a member of a regulated profession and has been appointed or assumed for the trust as a professional trustee, a class of trustees provided in the section 272 of the bill that is a person who is in the course of business provides professional services in relation to managing the affairs of a trust, may be removed from office by their co-trustees in the circumstances set out in the new subsection 1B. Subsection 1B sets out that such a trustee may be removed where there are no longer a member of a regulated profession, for example, that could be retirement or removal from the role, or are no longer able to practice. This also covers situations where a person may remain a member but does not have a practising certificate or is suspended from practice since different regulatory regimes may approach that differently. Moving on to Jeremy Balfour's amendments 52 and 53, under section 22 of the Trust Scotland Act 1921, the court has a power to appoint new trustees. The court of session has the common law power to appoint new trustees, too. The SLC consulted on those powers and felt that the current law could be simplified. It recommended a statutory provision, which is section 1 of the bill. I understand that there has been some concern that the use of expedient in section 1 is a lower standard than the current common law position, under which the court may only appoint a new trustee when necessary. However, I note that the necessity is not always a requirement of the current statutory power. The court's power of appointment can only be exercised if such appointment is shown to be expedient for the administration of the trust or whether there is no capable or traceable trustee. That should be sufficient to avoid any significant risk of unnecessary or vexatious applications under this section and also broad enough to allow courts to usefully intervene where trusts find themselves in administrative difficulty. Moving on to amendment 53, while I understand that the member has taken an interest in the use of sole trustees and wants to see more protection for them, my view is that amendment 53 has the potential to make the law more uncertain and create unintended effects for sole trustee ships. For example, it is not clear whether such acceptance should apply where a trustee is appointed or assumed under sections 1, 2 or 3 of the bill and how the general conveyance of the trust property to them under section 4 would operate in relation to this amendment. In addition, the amendment does not take into account situations through which an existing trustee becomes a sole trustee, for instance through the resignation or death of co-trustees. The position at common law on acceptance is well settled, no one can be compelled to be a trustee and acceptance does not have to be in writing. The fact that taking on the administration is enough to indicate acceptance. I would remind the committee that the bill is not an attempt to codify the law of trust but is instead meant to clarify the law and resolve issues that arise in practice. I am not aware of any stakeholder suggesting that acceptance of office was a significant practical issue for trustees or for sole trustees and this amendment could cause the kind of uncertainty that we are trying to clear up. If the committee agreed, I would need to carefully consider how this interacts with the other sections in the bill where trustees can be appointed with a view to making possible amendments for stage 3. If the member wishes to press amendments 52 and 53, which is not part of the committee's stage 1 recommendations to a vote, I would ask the committee to reject them. I would ask the members to support my amendments 1, 2, 3, 6, 44 and 45 in this group. I thank the minister for her explanation around her amendments. I particularly welcome amendment 6, which gives clarity in regard to the differential between someone acting as a trustee professionally and Rose acting in a voluntary or different basis. I hope that that will give some clarity going forward in regard to situations. I also welcome the other amendments that she is bringing forward in this section. I will be convener pressing my two amendments. I think that in regard to amendment 52, it is an area that simply clarifies the common law and is what the courts have been practicing over the years. I think that that simply does not change anything. It simply clarifies what is happening. In regard to section 53, I will also be moving on. I have been in conversations with lawyers and with a law society, and they think that that needs to be clarified in regard to going forward. Depending on whether the amendment is accepted or not by the committee, I would hope that either way that there could be further discussions with Scottish Government, so that that can be clarified. However, I think that it would be good at this stage to have it on the face of the bill. Minister, there is just one point that is not a question in regard to the amendments with regard to the experience of my clues. I very much welcome those amendments coming forward. I know that, certainly, constituents of mine, colleagues around the table and across the UK, will certainly be pleased that that sorry situation is having a positive effect on the bill to help people to go forward. Jeremy Balfour, to wind up or press or withdraw the amendment 52. Amendment 52, please. So the question is, amendment 52 be agreed to. Are we all agreed? No. Okay, so there'll be a division. So all those in favour, please raise your hands. All those against and there'll be no abstentions. So the result of the vote is 3, 4, 2 against and no abstaining. So amendment 52 is agreed to. So the question is that section 1 be agreed to. Are we all agreed? The question is that sections 2 to 4 be agreed to. Are we all agreed? Move to section 5, and the call amendment number 1, in the name of the minister, already debated with amendment 52. That's the minister to move formally. Thank you. So the question is that amendment number 1 be agreed to. Are we all agreed? Call amendment 53, in the name of Jeremy Balfour, already debated with amendment 52. Is Jeremy Balfour to move or not move? Move, please. So the question is that amendment 53 be agreed to. Are we all agreed? No. Okay, there'll be a division. So all those in favour, please raise your hands. All those against and there'll be no abstentions. So the result of the division is 3, 4, 2 against and no abstentions. So amendment 53 is agreed to. I call amendment number 2, in the name of the minister, already debated with amendment 52. That's the minister to move formally. Thank you, convener. Sorry, I'll bear with me one moment. Convener? That's how I moved. Okay, thank you. So the question is that amendment number 2 be agreed to. Are we all agreed? Thank you. I call amendment number 3, in the name of the minister, already debated with amendment 52. The question is that amendment number 3 be agreed to. Are we all agreed? The question is that section 5 be agreed to. Are we all agreed? After section 5 is capacity and appropriate persons. I call amendment number 4, in the name of the minister, grouped with amendments as shown in the groupings. I remind members that amendments 43 and 51 are direct alternatives, and that is that they can both be moved and decided upon. The text of whichever is the last agreed to is what will appear in the bill. So I ask the minister to move amendment number 4 and speak to all the amendments in the group. Moved, convener. Convener, amendment number 4, in my name, adds a new section confirming that a resignation power may be exercised on an incapable trustee's behalf by a guardian. If such a trustee is a sole trustee or where there is no other trustee who is both capable and traceable, the guardian's power of resignation cannot be exercised unless an additional trustee is assumed or appointed or a judicial factor is appointed to administer the trust. The power of the guardian to appoint a new trustee is restricted to the power to appoint only one trustee. This is consistent with our wider policy position that administration of the trust should lie with the trustees insofar as reasonably practical. Amendments 4, 7, 10, 13, 14, 15, 16, 17, 19, 20, 26, 27 and 41 address an issue which was highlighted by SPICE in its research briefing paper. The bill at several different points makes provision for the representation of the interests of beneficiaries aged under 16. For instance, section 10 provides for the guardian of a child beneficiary to be able to consent to the discharge of a trustee on behalf of a child beneficiary. The definition of guardian in section 74 however does not refer to those parental rights in relation to a child beneficiary. These amendments resolve this issue and cover the various avenues via which a person might obtain parental responsibilities and parental rights in relation to a minor beneficiary or a potential beneficiary. The categories of person are restricted to those having the specific responsibility or right to act as a beneficiary's legal representative and includes persons who hold parental rights in relation to a beneficiary or potential beneficiary under the equivalent legislation in England, Wales and in Northern Ireland. The bill uses a familiar definition of incapable, which is similar but not identical to the definition of incapable found in the adults with incapacity Scotland Act 2000. Stakeholders and the committee have rightly pointed out that there are significant and far-reaching changes recommended to the mental health legislation and it is clearly undesirable for the meaning of incapable in trust law to differ from the usual widely understood definition while these recommendation changes are explored. I can see the merit in making sure that the bill does not diverge from general law on capacity and ensuring that it will keep pace with any changes in that area. Amendment number 43 in my name therefore aligns the definition of incapable used in the bill with a wider incapacity legislation. At the same time, bearing in mind the recommendations for a form of capacity legislation and the committee's recommendations on this bill, I think that it is sensible for ministers to be able to amend the definition in line with any future changes which should be subject to the affirmative procedure. Clearly, the precise nature of the changes that may be made in the future cannot be anticipated at this stage and conferring such a power in ministers will help to ensure such flexibility to allow trust law to keep pace with our understanding of incapacity. At the same time, it is made clear that a person without legal capacity includes a child. The term legal capacity is used twice in the bill when discussing supervisors and protectors and I believe that this is helpful to set out what we mean by this in the bill. The amendment makes the position clear that legal incapacity includes the non-age of an appointed supervisor or protector. Some types of trust for instance testamentary trust can be drafted well in advance of when we expect them to take effect. An individual may appoint their children as a protector in expectation that when they die they will be at an age to assume the role, but the early death of a trustee could frustrate these intentions. Moving on to Jeremy Balfour's amendments, I understand that amendment 46 is in response to the concerns raised about having to assess the capacity of a fellow trustee. I disagree that this places an unfair burden on trustees. Stakeholders have noted that it is helpful for the administration of smaller trusts to have a mechanism to remove trustees in clear-cut cases which does not involve going to court. First of all, trusteeship is by the very nature of Burnhamson. It comes with duties as well as powers and this should be recognised by individuals when they agree to take on this role. Secondly, I would point out to the committee that while trustees have the power to remove an incapable trustee they do not need to exercise it. In less certain cases, trustees will have the option to go to court to remove and so do not have to take the legal decisions themselves. The Scottish Law Commission also recognised that in its report in cases where there is any doubt the appropriate route is to seek removal by the court. In other words, the power in section 7 is just one tool in the trustees toolbox. Finally, as I set out in my letter to the committee last week that I intend to use the explanatory notes to make clear that a trustee who can sit in themselves to have been unfairly removed by the co-trustees on any of the grounds mentioned in section 7 can raise legal proceedings to challenge that decision. This goes to the ultimate safeguard which is that any trustee who thinks that they have been removed unfairly can challenge their removal in court. This is about finding the right balance between ensuring that trusts can be managed effectively and avoiding the need to go to court and spend trust funds in order to do so. For instance, in every case where the trustee is by majority wished to remove an incapacitated co-trustee, I believe there is a balance in section 7 is right and there is enough safeguards in place to prevent abuse of this. Jeremy Balfour's amendment will tilt this balance too far in the opposite direction and the very real problem of incapable trustees continuing to hold office because trust cannot afford the court application to remove them will continue and all the problems and issues that are caused for the administration and trusts. I thank the member for his amendment 59, which seeks to amend section 55 of the bill. My view, however, is that the amendment is unnecessary. It's clear to me that the section has already drafted, achieved exactly what the amendment is trying to seeking to clarify. Section 554 states that approval on behalf of a person who is incapable may give any person authorised to give it. This is clear. If a guardian does not have the powers relating to the matter, they cannot authorise any approval on behalf of the incapable adult for the purposes of this section. I am concerned that, by agreeing to the amendment, Parliament inadvertently gives an impression that it meant something else and creates the uncertainty as to what it meant. I am, however, willing to use the explanatory notes to set out the view in more detail and I urge the member not to move amendment 59 or, if he does, I would ask the committee to reject it. Amendments 49, 50 and 51 in Jeremy Balfour's name would introduce a presumption that a trustee is capable and that it would be for the court to determine otherwise. In addition, they would confer on Scottish ministers a power to define incapable by regulations subject to the affirmative procedure. The presumption would not only apply in certain circumstances, including where a trustee appoints a new trustee under section 2 of the bill and under section 12, where an incapable trustee cannot make a decision. Those provisions were considered carefully by the SLC and, as drafted, those amendments will make the administration of trust much more difficult than I think it needs to be. To give an example, under section 12 of the bill a decision is binding on the trustees as a whole, if made by the majority of those who are able to make it. It then goes on to provide incapable trustees are not eligible to take part or may not be counted when calculating the majority. Amendment 50 would have the practical effect of ensuring that incapable trustees do count towards calculating the majority, which is a recipe for administrative deadlock. To resolve this issue, trusts would have to apply to the court and the beneficiaries would ultimately bear the legal costs. Under the bill, as introduced, any trustee who considered themselves to have been unfairly replaced or excluded from decision making by the co-trustees can raise legal proceedings to challenge that decision. There are therefore already sufficient safeguards in place. I move amendment 4 in my name and urge members to support my other amendments in the group. I would ask the committee to reject Jeremy Balfour's amendments, which were not recommended by the committee at stage 1. I move to Jeremy Balfour to speak to amendment 46 and other amendments in the group. Thank you, convener. If I can move amendment number 59 in my name. As the minister said, that is a clarification of the law at the moment. The effect of that would be that it clarifies that any person authorised under the ad-outs of incapacity Scotland Act 2000 or the law of any country other than Scotland must have relevant powers that allow them to give approval on behalf of an incapable adult. The reason for bringing this forward is, again, that appointments under the ad-outs within Capacity Scotland Act 2000 extend only so far as the specific powers conferred on that person appointed under the act. I think that this will again bring clarity. I accept the minister that this is already in place, but I think that this will help us and help those going forward as interpretation of this act takes place. In regard to the whole area of capacity and the appropriate person, I think that it would be fair to say that this would be the area that the committee took a lot of evidence on, and there was a lot of discussion around this area. In regard to my amendment number 51, I have fought hard and long about this. The minister has written to the committee to say that the majority of stakeholders were happy with the definition within the ad-outs within Capacity Scotland Act 2000, and that was the case. However, we did take evidence from other stakeholders, academics and others, who thought that that definition one will change or might change, but even the definition itself does not give absolute clarity for trust law. What I am proposing this morning, convener, is that the Scottish Government takes time to reflect on this further, and that any definition is brought forward by regulations that would come to this committee in due course. This would allow stakeholders and Scottish Government to do further work on it, and, depending on when the bill comes into force, we would also give time to see where we are in regard to any definition within Ad-outs within Capacity Scotland Act 2000. The power would also allow, as the minister's amendment does, that, for future clarity, any other new definition could be brought forward by regulations, so that flexibility is both in my amendment and within the Government. I suppose that the decision for the committee this morning is, are we comfortable with that definition within the 2000 act, or do we think that we need some more time to take more evidence and for Scottish Government to scrutinise that more? My view would be that that would be helpful. In regard to amendment number 50, again, this is an area where we have taken evidence on, and the minister is right that there is a balancing act here between what the law of the trustees who want to remove a trustee have compared to those that don't. My view is that it should not be for the individual who is being removed to have to go to court, but it should be for the trustees who are removing that person if there is not an agreement to go to court. Actually, the Scottish Government minister made the argument almost for me in her statement in regard to cost. Her comment was that it could cost the trust money if it had to defend such an action, or if it had to bring forward such an action. The argument is true for somebody who wants to remain a trustee. There is the provision for expenses at the end of the proceedings, but someone who came forward would have to find that initial money, both legal fees and court fees, to bring that forward. I think that the balance is wrong in that regard. I think that that should be a role of the trustees who want to remove that individual. I would seek that we put that burden on the trustees rather than on the person who has been removed. I think that it would be fair to say, and hopefully fair to say, that this power, whichever way we go, is exceptional that, in most cases, people step down voluntarily, but where that is exceptional, for me, the cost should lie with the trust, not with that trustee. In regard to the other amendments, I will be supporting the Government on them. Minister, would you like to wind up? As I said, those amendments, if they were to be brought forward, would mean more costs to trust and to remove an administration of trustees, and it might be more difficult. I am comfortable with the definition of the 2008 act. The question is that amendment 4 be agreed to. Are we all agreed? The question is that section 6 be agreed to. After section 6, the executives of persons unlawfully killed. I call amendment 5, in the name of the minister, grouped with amendments 38 and 39. I ask the minister to move amendment 5 and speak to all the amendments in the group. Thank you, convener. I move amendment 5. I believe that I speak for all of us when I say that it is unacceptable for a convicted murderer to continue to act as an executor in their victim's estate. The present position in Scott's law appears to be uncertain, with some suggesting that the law has one effect while others disagree. The leading practitioner's textbook on the administration of estates suggests that the appointment of a murderer is valid but should ordinarily be declined. However, there is one well-known case that shows that a convicted killer cannot be relied on to decline office. I would like to take this opportunity to thank all the campaigners for all this work on this issue. Amendments 5, 38 and 39, in my name, will clarify the law. An executor convicted of or being prosecuted for the murder or culpable homicide of the deceased will be regarded as unfit for that office and can therefore be removed by the court. An application to remove can be made at the appropriate sheriff court and the provision will be retrospective. For example, an executor convicted of murder before the provision comes into force could be removed from office. In addition, where a sheriff is considering an application for the appointment of an executor, it is satisfied that the person seeking appointment has been convicted of or is being prosecuted for the murder or culpable homicide of the deceased. The sheriff must refuse the application. That is a practical solution that will both provide a resolution and help to ease the distress of other persons who may find themselves in this situation. Importantly, it also provides the necessary legal certainty. That means that the administration of the deceased estate cannot be called into question because of questions about the validity of the executor's appointment. Can I move amendment number five? Thank you minister. Colleagues, any comments? No, okay. I think minister has just taken a one comment that is certainly with me working through the earlier stages of the bill process. I think that we were all in the same page that we wanted to get to a good outcome here because it is very much a challenging area and so I think that the amendment in front of us certainly is, hopefully, it will certainly do that. So with that, I ask the minister to wind up. We will just move things. So the question is that amendment number five be agreed to. Are we all agreed? Move on to section seven. I call amendment 46, in the name of Jeremy Balfour, already debated with amendment number four. I ask Jeremy Balfour to move or not move. Thank you. The question is that amendment number 46 be agreed to. Are we all agreed? No, okay, so all those who agree please raise your hands. All those against and there are no abstentions. So the vote is yes, it's two for and three against and no abstentions. So amendment number 46 is not agreed to. I call amendment number six, in the name of the minister, already debated with amendment number 52. I ask the minister to move formally. Move, convener. Thank you. The question is that amendment number six be agreed to. Are we all agreed? Okay, thank you. The question is that section seven be agreed to. Are we all agreed? The question is that sections eight and nine be agreed to. Are we all agreed? Move to section number ten, I call amendment number seven, in the name of the minister, already debated with amendment number four. I ask the minister to move formally. Move, convener. The question is that amendment number seven be agreed to. Are we all agreed? The question is that section ten be agreed to. Are we all agreed? The question is that section eleven be agreed to. Are we all agreed? Move to section twelve, on the decision making, powers of trustees and the validity of certain transactions and documents. I call amendment number eight, in the name of the minister, grouped with amendments as shown in the groupings. I ask the minister to move amendment number eight and speak to all the amendments in the group. Section twelve generally is a default section that applies to a trust unless a trustee provides otherwise. The SLC's policy intention on this issue is quite clear, as are the explanatory notes. The effect of section twelve one, as drafted at the moment, however, does not appear as intended to accommodate arrangements under a trust that will provide for trustees to take decisions other than a majority. I am aware that some stakeholders have questioned the status of existing trusts that require a specific trustee to be involved in making a decision. The clear policy intention is that such trusts should continue to operate as they currently do. Amendment number eight resolves the issue by making clear that section twelve one is a default rule that can be departed from by express provision in the trustee, or where implied or acquired by the context where there is no trustee. In its stage one report, the committee asked me to look at defining a number of terms that were raised by stakeholders. I wrote to the committee setting out that I would consider that further. One of those terms was the definition of beneficiary in the context of public trust, which was raised by the law society, who said that the definition used in the bill is geared towards private trusts and is not particularly suited to public trusts. Since stage one, I have looked at the matter further and the Scottish Government has spoken to the law society. I think that in the context of trustee decision making in a public trust this matter could be helpfully clarified. Section 12 provides a default rule that a decision binds the trustees only if it is made by a majority of those for the time being able to make it. Importantly, a trustee is not to be regarded as able to make a decision where they or might have had a personal interest in the decision, but this can be overridden by the trustee or in specific circumstances. One such circumstance is where all beneficiaries know of the personal interests and consent to the trustee acting. While this circumstance may work in the context of a private trust, it would be unlikely to work in the context of a public trust. Amendment 9 sets out that section 12 to A of the bill may be disregarded where the trust is a public trust and the decision is intended to benefit a section of the public, which is a trustee, is a member. In those circumstances, the trustee in question should not be disqualified from participating in the decision making process by reason of their being a member of the section of the public, which the decision is intended to benefit. However, a trustee is not permitted to participate in decisions in which the trustee has the particular interests specific to them as an individual. In other words, where the trustee's personal interest in the decision is greater than or goes beyond their general interest in the decision as a member of the section of the public, which the decision is intended to benefit, they should not be allowed to participate in the decision making process. Amendment 12 is about section 22 of the bill, which relates to section 2 of the Portionment Act 1870, which provides that all rent, annuities, dividends and other periodical payments in the nature of interests should be considered as accruing from day to day and may be expressly disapplied by the trustee. I am concerned about the potential unintended tax consequences of the power conferred upon trustees by this section. In order to avoid the risk of the imposition of higher taxes, amendment 12 adjusts the provision on the trust law to set out the default provision that trustees have the discretion to decide whether either to time a portion of income in accordance with section 2 of the 1870 act or treat income as accruing when it arises. Amendment 22, in my name, sets out that as a simple majority of the trustees must sign a document for it to be validly executed. There is tension between sections 40 and 73 of the bill. Section 40 provides that a deed is valid if executed by a majority of such the body of trustees as are both capable and traceable. On the other hand, section 73 inserts a provision into the 1995 act that takes no account of whether the trustees are incapable or untraceable. Incapable and untraceable trustees should be included in the total number of trustees for the purposes of calculating the number required to form a majority to validly execute trustees for a number of reasons. Whether a trustee is incapable or untraceable will change over time. If the number of trustees required to execute a trustee is tied to those matters, the number of trustees required to validly execute a trustee will also change over time. It would not be possible to look simply at the number of trustees in office at the time of execution of the deed and at the number of signatories on the deed to ascertain whether the document is validly executed. Instead, there would be a requirement to look behind the document to establish whether any of the trustees who were in office at the time that the deed was executed were incapable or untraceable at that time. That is impractical and would create uncertainty for any person seeking to rely on deeds executed by trustees. If incapable and untraceable trustees in office make it difficult for the active trustees to command a majority to execute deeds, the bill already provides sufficient mechanisms for the removal from office. That includes section 6 and 7 of the bill, which allows the courts or trustees in some cases to remove a co-trustee. I would like to move on to Jeremy Balfour's amendment 54. The effect of section 30 of the bill is to render ineffective a provision in a trustee which purports in a blanket fashion to limit a trustee's liability for breach of fiduciary duty or to indemnify a trustee of such breach. There is, however, an exception for a provision that authorises a particular transaction or a particular class of transaction which would otherwise be in breach of fiduciary duty. The policy intention behind this section is to protect beneficiaries from overly broad clauses that seek to limit a trustee's liability or indemnity clauses. It is there to protect trust property and, by extension, beneficiaries from acts of trustees that breach their fiduciary duties. The SLC was well aware that broad provisions risk abuse, especially as it might be seen, to encourage trustees to misuse the office to their personal advantage. Amendment 54 would have the opposite effect from what was attended from the SLC. It would widen the range of circumstances that can be covered by provisions to limit liability and indemnify trustees for breaches of duty. This would all be a potential detriment of beneficiaries who would find that their usual rights of recourse against trustees who have breached their trustees' duties are either weakened or unavailable. On amendment 55, I understand the point made by Jeremy Balfour and I am happy to support it. Finally, on amendment 56, I can see that this would be a useful addition to section 39 of the bill and I am happy to support it. Although I mainly think about how it interacts with other provisions in the bill with a view to bringing forward stage 3 amendments to make the necessary adjustments. I move amendment 8 and urge members to support the other amendments in my name in this group. I would ask members to support Jeremy Balfour's amendments 55 and 56. However, if Mr Balfour wishes to press amendment 54, which was not recommended by the committee in the stage 1 report, I would ask the committee to reject it. On amendment 54, I think that, again, during the evidence session, there was sometimes a conflict between roads that came from perhaps an academic background in regard to trust law and roads that were actually practised day in and day out. Amendment 54 has been drafted and has been helped to drafted by the Law Society of Scotland and reflects what practitioners are looking for in regard to day-to-day working. The amendment would extend the effect or protective clauses in the trust deed to all actions and decisions of the trustees and give them that protection. A trust deed may contain a provision proposing to limit liability for or indemnity for breach of a fiduciary duty. That is most likely to be relevant where a trustee is also a beneficiary, where a trustee's fiduciary duty would be likely to be put their personal interest in a conflict of interest with their duty as a trustee. That is often expressly permitted, sometimes with qualifications, within a trustee. It seems that such protection will continue to be effective because of section 30, subsection 2, but such protection is usually seen to be wider than transactions and it may be more appropriate, I would argue, to allow protective clauses to extend to all actions or decisions of the trustees. I think that that will give greater scope for trustees and, as we know, it is becoming more and more difficult sometimes to find trustees to do the job and to give them their protection will hopefully encourage more to come forward. I am grateful to the minister in regard to her support of amendment 55. This amendment would allow the court to determine that the trust property should bear none of the damages where this is appropriate. In regard to amendment 56, I am grateful for the minister in regard to her acceptance and I am certainly happy to work with her if there needs to be some tidying up at stage 3. The amendment is simply a clarification for the provisions on the validability of certain transactions entered into a by-trustee extension to transactions in exercise of powers and trustees, as well as those powers that are implied by sections 13, subsection 1 and 16, subsection 1 of the bill. In regard to the other amendments that have been misgrouping brought forward by the minister, I am happy to be supportive of them. I understand the law society's intention, but the way it is drafted is far too widely, and it defeats the bill's intention altogether. I would ask that committee members reject it. The question is that amendment 8 be agreed to. I call amendment 9, in the name of the minister, already debated with amendment 8. I call amendment 10, in the name of the minister, already debated with amendment 4. I call amendment 11, in the name of the minister, already debated with amendment 47. In its stage 1 report, the committee recognises that the power may already exist for trustees to choose to invest in a way that allows them to consider objectives beyond maximising financial returns, subject to the terms of the trustee. Nevertheless, it is recommended that the bill is amended to put this matter beyond doubt, and amendment 11 does this. I am grateful to the committee for all its work on the matter. The amendment is intended to be a reinstatement of the current legal position, taking account of case law, but to make the position clearer for users of the legislation for trustees in the future. It will make clear that, unless the trustee provides otherwise non-financial considerations in the form of ethical, social and environmental considerations, sometimes known as ESG or environmental, social or governance factors, can be taken into account by trustees when choosing between alternative investments that may perform equally well and is subject to overall trust purposes. It might be helpful to the committee if I can give an example to illustrate how this provision might work in practice. If a trust is established with the purposes that makes no reference to and has no connection with environmental goals, this section will allow trustees to properly take environmental considerations into account when choosing investments for the trust. If the trustees obtain advice from an appropriate financial advisor that the environmentally friendly investment has the best financial prospects or has equally as good financial prospects as any other investment, then trustees may properly decide that environmentally friendly investment is a suitable investment. This section will give trustees the confidence to take into account about non-financial considerations when making decisions about investing trust property in line with the trust purposes. Amendment 11 in my name already sets out that trustees can take into account non-financial considerations when considering investment decisions. My amendment will be of some assistance to trustees of a charitable trust in the situation described by the member. However, I do have serious concerns about the effect of the member's amendment number 47. Firstly, it singles out heritable property and thereby calls into doubt whether such trustees must achieve best value for movable property. Secondly, no substantial work or consultation with the Scottish Charity regulator, Oscar, has been undertaken, nor with the charity sector, about whether such a power is needed or even wanted. By singling out charities that take the form of trust, you are creating a two-track system for Scottish charities, as those that will take the form of a trust account for only 12 per cent of them are Scottish charities. At the minimum, that would cause unnecessary complexity in the law. In addition, it could have unintended and unforeseen consequences to existing charities of all legal forms and those that may be set up in the future. Oscar has expressed to the Scottish Government that this amendment raises a number of issues that require further detailed consideration, including its impact on the charity trust's duties, the fact that a trust's intentions could be disregarded, and the different treatment of charities depending on their legal form. Oscar has suggested that this matter could form part of a wider review of charity regulation that the Scottish Government will undertake. Ultimately, amendment 47 is about charity law and not trust's law, and it would be inappropriate to make such a sweeping change to charity law in this bill. When you put the question to John MacArthur at stage 1, he said, I think that we are all in danger of mixing up charity law with trust's law, and I would be slightly concerned if we were to go down a route that you are suggesting where there could be conflict between charity law and trust's law. I am of similar view, and if this amendment were passed, I would consider that we have significant unintended effects on the charity sector. Therefore, I would ask at the committee to reject amendment 47, which is not recommended at stage 1, and I would move and ask members to support my amendment number 11. Jeremy Balfour to speak to amendment 47 and other amendments in the group. Thank you, convener. I welcome amendment number 11 in the minister's name and will be supported by Matt, and I think that the committee did highlight that in our report. Amendment 47, brought forward by me, is after consultation with a number of third sector charities and also comes from my own personal experience, both as a trustee previously and also having worked in the third sector. I am of the view that this does not change the law in Scotland in any way at all, but, like amendment number 11 in the Scottish Government name, it simply clarifies the law so that trustees who are working within the charitable sector are clear about it. What my amendment suggests is that where a charity is still an heritable property, it does not need to always get best value for that property if that has been passed on to another charity. The practical effect of that will allow charities to help support other charities without necessarily getting the maximum income required. It does not force trustees to do that. It simply clarifies that they can look at that if they want to do that. I do not believe that that changes the law, as is at the moment, and there are opinions from senior council that outline the situation as it is within my amendment. All I am seeking to do on this is simply to clarify the law as amendment 11 seeks to clarify the law so that charities who have trust can go forward in regard to their work. The reason for simply having heritable property is that that will often be the largest asset and the most valuable asset, and I think that that brings clarification for that. I do think that amendment 47 is not new law, but it is clarification of the law, unless I would be asking the committee to support that today. I thank you. Are trustees under obligation at the moment to sell to the highest bidder as far as that goes, or can they take a lower offer dependent? Jeremy is saying that that clarifies the law, wondering if the law, as it stands, does that anyway. Where there is a bit of confusion is that this is charity law, and at the moment there is only 12 per cent of trust in our charities. That is where there is serious concerns from a Scottish charity regulator. Oscar, that is why we will not be supporting it. That does not really answer my question. I am wondering what the obligation and uncharitable trust is at the moment. Does that change it, or does it remain the same? Do you feel at the moment that this amendment would change the law between trust and charity? Thank you, convener. Just as I have previously stated due to the serious concerns from the Scottish charity regulator, Oscar, I ask the committee not to reject amendment 47. The question is that amendment 11 be agreed to. Are we all agreed? I call amendment 47, the name of Jeremy Balfour. Already debated with amendment 11, Jeremy Balfour to move or not to move. The question is that amendment 47 be agreed to. Are we all agreed? No. There will be a division. All those who agree with amendment 47, please raise your hands. All those should disagree. There are no amendments. The vote is yet three for yes, two against, and there are no abstentions. Amendment 47 is agreed to. The question is that sections 18 to 21 be agreed to. Are we all agreed? Move to section 22. I call amendment 12 in the name of the minister. Already debated with amendment number 8. I ask the minister to move formally. The question is that amendment 12 be agreed to. Are we all agreed? The question is that section 22 be agreed to. Are we all agreed? The question is that sections 23 and 24 be agreed to. Are we all agreed? Move to section 25. I call amendments 13, 14 and 15 in the name of the minister and all previously debated. I invite the minister to move amendments 13 to 15 on-block. Move all amendments, convener. I ask whether any member objects to a single question. We have put it to amendments 13 to 15. The question is that amendments 13 to 15 are agreed to. Are we all agreed? The question is that section 25 be agreed to. Are we all agreed? Move to section 26. I call amendment 16 in the name of the minister. Already debated with amendment number 4. I ask the minister to move formally. I move, convener. The question is that amendments 16 be agreed to. Are we all agreed? I call amendment 17, in the name of the minister. Already debated with amendment number 4. I ask the minister to move formally. The question is that amendment number 17 be agreed to. Are we all agreed? I move to the duty to provide information. I call amendment 18, in the name of the minister. I call amendment 21. I ask amendment 18 to speak to both amendments in the group. Thank you, convener. Amendments 18 and 21 are my response to the committee's request for the Government reviews the stage 1 evidence on the trustee's duty to provide information, with a particular focus on potential beneficiaries. Stakeholders questioned whether the duties imposed on trustees should cover potential beneficiaries who might never stand to benefit from trust property and are thereby too onerous. When it comes to information rights, there is a balance to be had between the rights of those who may benefit from the trust property as a whole and the rights of individual potential beneficiaries. I recognise that requiring trustees to inform potential beneficiaries about their position under a trust could lead to costs being incurred on the trust property. Against that, those who may benefit from the trust property have a fundamental role in holding the trustees accountable. They cannot do that if they are not properly informed. Officials have explored the matter further with the stakeholders and the Scottish Law Commission. Amendments 18 and 21 deal with the problem of excatious requests for information about trusts made by people who are technically potential beneficiaries but who have no real chance of becoming a beneficiary under the trust. The shift in balance of trustees' information duties will ultimately help beneficiaries and potential beneficiaries who are likely to benefit from the trust property. Firstly, it does not affect their right to trust information, and secondly, it reduces the likelihood of costs being incurred against a trust property that relates to excatious requests for information. I move amendment 18. I'm happy to move in. The question is, amendment 18, and be agreed to. Are we all agreed? I call amendments 19, 20 and 21, all in the name of the minister and all previously debated. Invite the minister to move amendments 19 to 21 on block. I ask whether any member objects to a single question that has been put on amendments 19 to 21. The question is, that amendments 19 to 21 are agreed to, are we all agreed? The question is, that section 26 be agreed to, are we all agreed? The question is, that sections 27 to 29 be agreed to, are we all agreed? I call amendment 54, in the name of Jeremy Balfour, already debated with amendment number 8, to ask Jeremy Balfour to move or not move. Move, convener. The question is, that amendment 54 be agreed to, are we all agreed? No, yes. There will be a division. All those who agree, please raise your hands. All those against, and there are no abstentions. So, the result of the division is 2, 4 and 3 against, and there are no amendments. Sorry, amendments number 54 is agreed to. Sorry, it's not agreed to. So, the question is, that section 30 be agreed to, are we all agreed? The question is, that sections 31 to 34 be agreed to, are we all agreed? Move to section 35, I call amendment 55, in the name of Jeremy Balfour, and already debated with amendment number 8, to ask Jeremy Balfour to move or not move. Move, convener. The question is, that amendment 55 be agreed to, are we all agreed? That section 35 be agreed to, are we all agreed? The question is, that sections 36 to 38 to be agreed to, are we all agreed? Move to section 39, I call amendment 56 in the name of Jeremy Balfour, That is now. C تو rhywbeth gyda mwy gwynau IQI leader ו envyad Cyfwレig có sgwneu, iced divides ond gстваwyr yn ddesgwyr. Rwy'n credu i'w cwilio ar fy enw i'w ddigonio. Rwy'n credu i'w cwilio ar fy enw i'w ddigonio. Yn gyfnod 57, yn y minell ym Ch kart gyffredinio, yw unrhyw ym Maneously Number 58, dЙ Emys yn yr un dros y 90 erfyn. Yn gyfnod 57, ac yn unrhyw ym M�이크업 Number 51, yr unrhyw mewn ddigonio i'w ddigonio rwyf yn daith yn ddigonio i'w ddigonio i'w ddigonio i ddigonio i'w ddigonio i ddigonio i beth syr dynamoiedd in the scope of section 41, where the trustee has expressly provided for anticipated changes in the law in the trust deed. The reason for bringing forward this amendment this morning is that changes to the law on accumulation periods have been in anticipation for some time. Grantees of existing trusts may have expressly provided for such changes in the trust deed and should be able to benefit from those new provisions. In regard to amendment 58, the effect of this amendment, if passed this morning, would bring charitable trust within the scope of section 41 but would retain restrictions on accumulation of income for public trust, which are not charitable trust. The bill, as introduced at the moment, excludes public trust which are charitable trust from the abolishing of restrictions on accumulation of income with the result that such charitable trust will remain subject to existing accumulation of income rules. In my view, this is not appropriate and the scope of the section should be extended to include charitable trusts. Trustees or charitable trusts are subject to other rights and duties under charity law and tax law to manage funds appropriately and subject to the oversight of Oscar and HMRC. Those rights and duties apply to all charities, whether they are legal form and empower Oscar and HMRC to control inappropriate accumulation of income by charities without reference to the express restrictions on accumulation of trust law, which apply only to charities constituted as trust. There may be reasons consistent with the charitable's purpose for income to be accumulated, for example, to generate funds for the next cycle charity work or for a specific project and to retain retention for probation on accumulation of income for charitable trust, may inhibit appropriate accumulations and would have sheer little practical purpose when inappropriate accumulation is sufficiently controlled by charity law and tax law. Removal of the existing trust law restrictions on accumulation would bring the trust into line with other legal forms available for the constitutional charities, whereas the tension of restrictions may make the trust less attractive as a vehicle for constituting charitable work in circumstances in which a trust would otherwise be the most appropriate form. Non-charitable public trusts are not subject to the same charity and tax law controls as charitable trusts and there is a case for retaining the existing trust law restrictions on accumulation of public trust that are not charities. That would guard against excessive long-term accumulation in non-charitable public trusts set up to pursue schemes that may take decades to materialise. I think that that will bring clarity again and so I do move amendment 58. Section 41 of the bill is about how long trusts can accumulate income. The current law in this area is complex, uncertain and inconsistent and the SLC's recommendation to repeal the existing rules met with universal support. A number of stakeholders, however, have questioned why charitable trusts are treated differently from other types of trusts, meaning that they cannot accumulate income. Amendment 58 in Jeremy Balfour's name would allow them to do so. I have serious concerns about the effect of this amendment. Trusters who set up public or charitable trusts almost invariably want the benefits to be provided immediately, so I do not think that this exclusion will create any practical difficulties. More importantly, at stage 1 evidence, I laid out my concerns that accumulations over a long period of time in charitable trusts could fall foul of the charity tests set out in sections 7 and 8 of the charities and trustee investment Scotland Act 2005. I also told you of my concerns that it may have the definition of charitable purposes, which is applicable for UK tax purposes, as provided by the charities Act 2006. Since then, the Scottish Government has corresponded with OSCA, and it has said that if there was no statutory limit to accumulation for charities, it would have serious concerns about whether a trust would have a directed, long-term accumulation was meeting the charity test, and therefore the trust charitable status could be caused into question. The committee did not recommend this at stage 1 report on amendment 57. I understand that some trusters may have anticipated the change bought about by section 41 of the bill and might have drafted their trust deed with that in mind, and this is especially so given that the time between the SLC making the recommendations and when this bill was introduced. Amendment 57 would allow trust property to be disposed of in line with the trusters' wishes where the change was anticipated over this time. However, as drafted, amendment 57 may not quite achieve the intended aim, so I may have to revisit this again at stage 3. It was on this basis that amendment 58 could have unintended consequences for the Scottish charity sector and the work of OSCA, and I urge committee to reject it, and I ask them to support amendment 57. I am grateful for the minister's support in regard to amendment 57 and, clearly, if it needs tidying up, I am happy to work with her and her officials in regard to that. I think that, in regard to amendment 58, the minister has almost answered the issue around this, that if a child for the trust goes for too long a period in accumulating income, then the intervention would come from OSCA in regard to that. However, at the moment, as drafted, the charity could not, for example, think in three years' time that we want to do something and we cannot communicate that money for a three-year period. If it went on for an excessive period of time and OSCA had concerns, it can intervene in regard to that and talk to the trustees about it, as can HMRC. The concern that the minister seems to express that this could go on for years and years is dealt with by the power that OSCA has. My concern is that, as it is drafted at the moment, child for the trust could not look to any short-term or medium-term financial acclimation of income so that it can be spent. I think that amendment 58, as it is drafted, gives OSCA intervention powers that they have already and that the trust has to be accountable to OSCA and to HMRC. The question is that amendment 57 be agreed to. Are we all agreed? I call amendment 58, in the name of Jamie Balfour, who is already debated with amendment 57. The question is that amendment 58 be agreed to. Are we all agreed? No, so there will be a division. All those in favour of amendment 58, please raise your hands. All those against. There are no abstentions. The result of the division is three, four and two against. Amendment 58 is agreed to. The question is that section 41 be agreed to. Are we all agreed? I call amendment 23, in the name of the minister and a group on its own. I ask the minister to move and speak to amendment 23. During stage 1, the committee heard evidence on how private purpose trusts are defined in section 42 of the bill and whether that definition is sufficient to distinguish between private purpose trusts with a beneficiary and regular trusts. The definition of the term private purpose trust is important for the operation of the bill as a whole and for the SLC's policy intentions. For example, there are several provisions in the bill that expressly do not apply to private purpose trusts. The Scottish Government has explored the matter further with the SLC and amendment 23 alters the definition of private purpose trusts in the bill. It clarifies that such a trust exists where the trust property is held by or is vested in a trustee for the furtherance of a specific purpose, which is not a charitable or other public purpose. In contrast to a regular trust, it is not constituted solely for the benefit of a specific beneficiary or a potential beneficiary. That reinforces the distinction between beneficiary trusts, which have, as they are sole purposes, the benefit of a specific beneficiary or a potential beneficiary, and private purpose trusts, whose purposes are not solely to benefit a specific beneficiary or a potential beneficiary. I move amendment 23. I move amendment 23. The question is that amendment 23 be agreed to or will be agreed to. The question is that section 42 be agreed to or will be agreed to. The question is that sections 43 to 48 be agreed to or will be agreed to. I move to section 49. That is protectors. I call amendment 24 in the name of the minister in a group of its own. Minister to move and speak to amendment 24. Thank you. Protectors have proved successful in other trust jurisdictions and the SLC concluded that they are almost certainly competent under Scots law, albeit that their appointment is not common. Section 49 of the bill clarifies that protectors can be appointed under Scots law and provide a list of example powers that might be conferred on protectors by a trustee. This list was designed to be wide since the officer of protector is relatively novel in Scots law, but I have listened to the concerns raised by stakeholders about some of the powers and I recognise the committee's concerns. That is why amendment 24 in my name removes those powers from the illustrative list in section 49, and that does not, however, limit the generality of the powers that can be conferred on the protector. I move amendment 24. Thank you. Do members have any questions or comments? The question is that amendment 24 be agreed to or will be agreed to. The question is that section 49 be agreed to or will be agreed to. The question is that sections 50 to 54 be agreed to or will be agreed to. We move to section 55 on the call amendment 59, in the name of Jeremy Balfour, already debated with amendment number 4 and ask Jeremy Balfour to move or not move. I move, convener. Thank you. The question is that amendment 59 be agreed to or will be agreed to. The question is that section 55 be agreed to or will be agreed to. We move to section 56, the role of the court. I call amendment 60, in the name of Jeremy Balfour, grouped with amendments 31, 32 and 42. I ask Jeremy Balfour to move amendment 60 and speak to all the amendments in the group. Thank you, convener. Amendment 60, in my name, would clarify the reference to paragraph C of section 55 subsection 5, which provides for potential beneficiaries, rather than asked to disdain persons specifically. I just think that that makes it slightly clearer in what is in my bill, and clarity is always a good thing in my mind. In regard to the other amendments within this group, I am happy to support them all. I ask the minister to speak to amendment 31 and other amendments in the group. Thank you, convener. During the stage 1 debate on issues about certain types of trusts used for tax avoidance purposes was raised, in the past trusts have had a reputation as a vehicle used primarily to avoid tax, but over the last couple of decades this has changed, for example with the introduction of the trust registration service. Nevertheless, since the debate, I have thought further about the comments and considered what more could be done to this bill to prevent trusts being used to avoid tax otherwise due. Section 64 of the bill includes a statutory court power excitable by the court of session to grant a remedy, if considered appropriate, where a trustee makes a decision that would not have been taken, but for the trustee being in error as to fact or law. In such circumstances, the granting of a remedy by the court could have the effect of wholly or partially reducing the trustee's decision. One particular concern, which was not raised by any stakeholder during stage 1, but was discussed with the LSLC, is a potential use of this provision to avoid the consequences of failed tax avoidance scheme entered into by trustees. This has a potential to make Scottish trusts a more attractive vehicle by which to avoid tax than trusts governed by other jurisdictions in the UK. Amendment 31 provides the court with some guidance on how to exercise its wide discretion in relation to the granting of a remedy. The amendment signals to the court and potential applicants the wider public policy considerations engaged in these types of applications. If the purpose of applying to the court was to simply avoid the tax consequences of the trustee's decision, then the court has the discretion to refuse any remedy which it would have had the discretion to do anyway. Moving on to amendment 32, the LSLC looked at how a court can assist trustees by providing guidance, directions and advice where they encounter problems relating to the administration of a trust. It recommended that this power should be suitably restated in primary legislation. When the bill was introduced, our view was that because the courts already had the power to make provision by court rules, primary legislation was not necessary. Stakeholders, including the senators of the College of Justice, however, thought that a provision in primary legislation should be retained to avoid doubt over these matters. It was not our intention to cast doubt on this useful method for trustees to obtain advice on administrative difficulties encountered in the trust. I have listened to the views of the stakeholders and the committee and that is why amendment 32 in my name makes clear provision for the court to assist trustees and others with questions about the administration of a trust. My officials have shared this amendment with the Lord President and his office have confirmed that he welcomes that provision is set out in primary legislation. Amendment 42 responds to the committee's recommendation regarding the role of the court in hearing trust applications. Evidence was taken during stage 1 about the relative legal costs of applications raised in the share of court versus those raised in the court of session. While some suggested that there was no significant difference, others took the opposite view. That is not data held by the Scottish Government, as such the law society said in its stage 1 briefing to MSPs. Such information is difficult to capture accurately with reference to trust cases. I have sought information from the Scottish Courts and Tribunals Service, the Law Society of Scotland, STEP and the Faculty of Advocates about the legal cost to try and get a more accurate picture. However, that has not proved helpful as none could provide the information requested for a variety of reasons. I understand that the committee has run into its own obstacles when it corresponded with the SCTS and the auditor of the court. The auditor, for example, said that trust cases received for account are relatively infrequent and those are received vary in their individual circumstances and complexity, so it would be difficult to find any particularly meaningful insight from any average figure. Nevertheless, I understand the committee's point about seeing flexibility added to the bill so that future provision could be made for a greater choice between the courts when it comes to making different types of trust applications. Amendment 42 would do that. I would confer on the Scottish ministers a power with the consent of the Lord President of the Court of Session to vary the definition of court in section 74 of the bill. That would allow changes to be made to which courts can hear different types of trust applications. For example, the bill, as introduced, allows the court of session on the application of trustees to grant them additional powers of administration or management in relation to trust property. In the future, regulations could be made so that a share of court may grant those additional powers. After consultation with the Lord President, I have made provision for the consent of the Lord President given their role as head of the judiciary. Given that the power would be available across a range of statutory provisions in this case, I believe that providing for the consent of the Lord President is sensible. Finally, the regulations are subject to the affirmative procedure. On Jeremy Balfour's amendment number 60, I can understand the point made and I am happy to support his amendment. I urge members to support amendments 60, 31, 32 and 42. I welcome that from the minister. It is interesting how difficult it has been for Scottish Government and for the committee to find the appropriate information. Section 42 does give future proofing for the bill. Clearly, both the court of session and the share of court are always evolving and practice is always evolving. I welcome section 42 so that, if things do change in the future, there is that power there, both by the Government and the Lord President to grant. I welcome section 42 and I move amendment 60 in my name. A bit ahead there. Any other colleagues have any questions or points? No, okay. Mr Balfour? I formally move amendment 60. So the question is that amendments 60 be agreed to. Are we all agreed? Yes. The question is that section 56 be agreed to. Are we all agreed? The question is that sections 57 to 60 be agreed to. Are we all agreed? We move to the alteration of trust purposes. I call amendment 25 in the name of the minister, a group with amendments 28, 29 and 30. I ask the minister to move amendment 25 and speak to all the amendments in the group. Thank you, convener. Section 61 of the bill is about the alteration of trust purposes and attempts to balance the trusters' wishes against the wishes of the beneficiaries by allowing for a period of 25 years of the lifetime of the trust, whichever is longer before an application can be made to the court. A 25-year time limit was chosen by the SLC because this section is predominantly intended to deal with long-term trusts and the problems that can arise in relation to them, and 25 years is an easily workable default rule that they consider represents a short generation. The committee heard from stakeholders that the provision is welcome but recommended that applications to court should be made in exceptional circumstances. I have reconsidered this provision after further consultation between my officials and the Law Society of Scotland, Steppe and the SLC, and I believe that by allowing the court to decide applications on the evidence is sufficient protection to do away with the default timeline altogether. If amendments 25, 28, 29 and 30 are agreed to, section 61 would no longer stipulate a default time period during which the purposes of a trust cannot be altered. In effect, it would reverse the position set out when the bill was introduced, setting out a maximum time period of 25 years or a lifetime of a trust whichever is longer during which the trust may trust deed exclude the jurisdiction of the court under section 61. In my view, those amendments ensure flexibility for trusters who may wish to exclude the jurisdiction of the courts for a short time and protects against the risk that those unhappy with the terms of a trust may mount an early application before any material change of circumstances has occurred. Adding a caveat that would allow relevant persons to raise an application in exceptional circumstances would not be in line with the general policy underpinning this section, which are the problems caused by long-term trusts, and it would be relatively difficult to legislate for what is meant by exceptional circumstances. Finally, any caveat might be abused by persons disappointed by the distribution of the trust property who could raise or threaten to raise court proceedings. Ultimately, the legal expenses of defending such an action would come from the trust property and would be at the expense of the existing beneficiaries. I move amendment 25, in my name. The question is, that amendment 25 be agreed to. I call amendment 26, in the name of the minister. I have already debated with amendment number four. I move amendment 26, in the name of the minister. The question is, that amendment 26 be agreed to. I will agree to. I call amendment 27, in the name of the minister. I have already debated with amendment number four. The question is, that amendment 27 be agreed to. I will agree to. I call amendment 28, 29 and 30, all in the name of the minister and all previously debated. I invite the minister to move amendments 28 to 30 on block. I ask whether any member objects to a single question and put on amendments 28 to 30. The question is, that amendments 28 to 30 are agreed to. I will agree to. The question is, that section 61 be agreed to. I will agree to. The question is, that sections 62 and 63 be agreed to. I will agree to. I call amendment 31, in the name of the minister. I have already debated with amendment number 60. I ask the minister to move formally. I move, convener. The question is, that amendment 31 be agreed to. I will agree to. The question is, that section 64 be agreed to. I will agree to. I call amendment 32, in the name of the minister. I have already debated with amendment number 60. I ask the minister to move formally. I move, convener. The question is, that amendment 32 be agreed to. I will agree to. The question is, that section 65 be agreed to. I call amendment 33, in the name of the minister. I have grouped with amendments 34, 34, 35, 36, 37 and 40. I ask the minister to move amendment 33 and speak to all the amendments in the group. Thank you, convener. Under the current law, it is usually the case that trustees are personally liable to pay for litigation expenses to successful opponents but have a right of relief against the trust estate. Section 65 sets out the new default position, which is that a trustee does not incur personal liability and will only do so where certain grounds exist and the court exercises its discretion to make an order for expenses against the trustee personally under one of those grounds. Amendments 33, 34, 35, 36 and 37 respond to concerns about the impact of section 652 of the bill, which were raised by the law society and step amongst others. Those amendments remove subsection 2 and on the whole the section as amended makes a significant shift away from the likelihood that a trustee would incur personal liability for litigation expenses when compared with what we understand is current practice. Subsection 3 allows the court wide discretion to deal with litigation expenses and allows the courts to take into account all the circumstances when deciding how to exercise its discretion. Amendment 35 adds to the list of circumstances in which the court may exercise its discretion to find a trustee personally liable for expenses of litigation. The scenario where the trust property is insufficient to meet the expenses incurred in litigation ensures that those who may wish to do so cannot abuse trust to raise vexatious litigation and easily avoid the legal costs to do so. Trustees would be able by application under the new subsection 8 to ask the court to determine liability before expenses were incurred, so the trustees would be proceeding with any litigation with their eyes open. Section 65, as already discussed, of the general application to any litigation to which trustees may be party to. Under this section, as introduced, the court can impose personal liability on trustees for litigation expenses in certain circumstances, including where the trust property is insufficient to meet the expenses or the trustee has bought about the litigation by breach of duty. This is however limited to the court of session and therefore the provision restricts itself to setting out a statutory regime for how the litigation expenses incurred in the court of session shall be determined. This is not the policy intention and I have listened to the evidence of stakeholders such as the sheriffs and summary sheriffs association who have pointed out that litigation will also take place in the sheriff courts not just at the court of session. Accordingly, amendment number 40 clarifies the position so that the power conferred on the courts by section 65 can be exercised by the court of session and the appropriate sheriff court. I move amendment number 33, convener, and I ask the members to support my other amendments in this group. Thank you, minister. Members have any comments or questions? Okay, thank you. I would like to wind up. I'm happy to move, convener. Okay, thank you. The question is at amendment 33. We agreed to, are we all agreed? I call amendments 34, 35, 36 and 37, all in the name of the minister and all previously debated. I invite the minister to move amendments 34 to 37 on block. I ask whether any member objects to a single question and put on amendments 34 to 37. The question is that amendments 34 to 37 are agreed to, are we all agreed? The question is at section 65 by agreed to, are we all agreed? The question is at sections 66 to 72 by agreed to, are we all agreed? So, we move to after section 72. It's the time limit for a cohabitant claim on intestacy. I call amendment 48 in the name of Jeremy Balfour in a group on its own. Jeremy Balfour to move and speak to amendment 48. Mr Balfour. Thank you, convener. The bill that we have before us is the trust and success in bill, which hopefully in due course will become an act. I think that it would be fair to say that it is heavily on trust and value light on success. I think that there is disappointment within the legal profession that this was an opportunity to reform succession law in a much wider way. Now, as we heard in evidence both from academics and those within practice, what that changes should be might have been more controversial and harder to do. Clearly, I think that most would agree that succession law, as it is at the moment, is not fit for the 21st century. I am aware that the Scottish Government has said that there will be no further legislation within this parliamentary session in regard to succession law. However, I wonder whether the minister could outline perhaps at stage 3 in the debate of what plans they have to extend any consultation around succession law. The Scottish Law Commission has done their work. It is now for the Government to put something out for consultation. I am sure that the committee and others within Parliament would be interested to know whether it is likely to be a further consultation within the next two and a half years of this Parliament or not. Turning to the specific amendment number 48, this would insert a new section that would amend the family law Scotland Act 2006. We would extend the deadline for a cohabitant to submit a claim from six months to 12. Clearly, every individual case is different in regard to the grieving process, but I think that this is simply an extension to allow a cohabitant individual a bit longer to consider their views and to consider what they should do. Clearly, any time limit will affect some, but for me to extend it from six months to 12 months, it gives people a bit longer to think through the emotion of what has happened to them and hopefully will protect some vulnerable individuals if the amendment is accepted by the committee. When an interstate deceased person was in a cohabiting relationship at the time of death, the survivor can make an application to the court for a financial provision. They must adhere to strict timelines when doing so six months from the date of death. It has been suggested to the committee that this is unduly short. The committee has heard evidence from a number of stakeholders about the effect of this time limit. I can see merit in the suggestion that the time limit is extended to 12 months, and I am happy to support it. However, as a Law Society of Scotland pointed out in its stage 1 briefing, there are other issues encountered by those attempting to apply for financial provision on the death of a cohabitant that may require to be addressed. If the committee agrees to the amendment, I would therefore not propose to commence the provision until we have had the opportunity to consider those other issues and, if necessary, address them. As the committee will know, the SLC recently reported on financial provision on breakdown of the cohabiting relationship otherwise than by death. That includes a recommendation on the new definition of cohabitant. The Scottish Government has committed to considering a longer-term programme of implementation of SLC reports over the course of this session. The list includes movable transactions, trust, judicial factors, and it is also included on the SLC's report for cohabitation. On 6 September, I wrote to the SLC setting out that detailed work on the report was about to begin. Separately, I will also set out that I am giving consideration to consulting on the recommendations that were made in the report, and such a consultation would be an opportunity to seek views on any proposed changes to the law on financial provision for cohabities on it in testacy. If I can say for Mr Balfour's comments regarding the consultation, I will write to the committee ahead of stage 3 of the report. I urge members to support amendment 48. I thank the minister for her comment right at the end there and I look forward to receiving I'm sure that all of us on the committee look forward to receiving that from her. I'm pleased that the Government is willing to support amendment 48, and I hope that it will come into force in some time in my lifetime. I feel wrong for wanting to move it. The question is that amendment 48 be agreed to or will be agreed. The question is that section 73 be agreed to or are we all agreed. I call amendment 38, in the name of the minister. I have already debated with amendment number 5, and I ask the minister to move formally. Move formally, convener. The question is that amendment 38 be agreed to or are we all agreed. I call amendment 39, in the name of the minister. I have already debated with amendment number 5, and I ask the minister to move formally. I move formally, convener. The question is that amendment 39 be agreed to or are we all agreed. I call amendment 40, in the name of the minister. I have already debated with amendment number 33, and I ask the minister to move formally. The question is that amendment 40 be agreed to or are we all agreed. I call amendment 49, in the name of Jeremy Balfour. I have already debated with with amendment number 4. Is Jimmy Balfour to move or not move? That will move. Thank you. The question is, is amendment number 49 being agreed to? Are we all agreed? Yes. No. There will be a division. All those who agree, please raise your hands. All those against. There are no abstentions. The vote is 2-4 and 3-4 against. Amendment number 49 is Prestonul hynny nêimo yn mewn nidasglo ffaith rhywontoazar plwyddon er mwyn system hynny yn Llyfridol ein gwleidydd, sut chi fodr yn rymeliedeidach i mi dressingfadau a rymeliedeid? Sut i chi'n eu gweld, wedi weidwchladwch яr byd i grwmmelotau mewn priff 손ysg MOM are rydych chi'n swydda disgusting? Isewdd o woch chi ddechuju i mig rymeliedeid fel siaradur ar brawswiad, AdonGoed. Un i…) Ysgrifennu nifer 50 o fries. AdonGoed wedi wedi Majesty Fy耀 ddechugal Fy封, yn ymgyrch yn ddiw ddawr i blaidol? Nid oedd ymlaen yn myfnid. Rwy'n myfnid, credu'r newid. Wrth hyn o, mae'n myfnid eich byw a'r ôl eich lleid o. Rwy'n myfnid eich lleid o. Rwy'n myfnid eich lleid o. Rwy'n myfnid eich lleid o. Ond eich lleid o. Ysgrifennu neid eich lleid o. Oni yn ddodio'r happenio. Herdoa'r newidau? Yn i'r dweud기가ff dydig. Ondithe'r ddog lediau yn revolerol. Mae ddog lediau yn revolerol. There are no-one who is for, there were two against and three abstentions. Amendment 50 is not agreed to. Amendment 43, in the name of the minister, is already debated with amendment number 4. Amendment 43, in the name of the minister, is directly on alternatives. That is that they can both be moved and decided on. The text of whichever is the last agreed to is what will appear in the bill. The question is that amendment 43 be agreed to. Are we all agreed? Yes. Amendment 51, in the name of Jeremy Balfour, is already debated with amendment number 4. Once again, I remind members that amendments 43 and 51 are directly on alternatives. That is that they can both be moved and decided on. The text of whichever is the last agreed to is what will appear in the bill. Are we going to move or not move? Not move, convener. Not move, okay, thank you. Okay, so the question is that amendment 51 be agreed to. Are we all agreed? Is that a no? So with that, so there is a division. So all those who agree with amendment 51, please raise your hands. All those against. And all those who want to abstain. Okay, so there's nobody for, there are two against and three abstentions. So amendment 51 is not agreed to. So go to amendment number 44. So call amendment 44 in the name of the minister. Already debated with amendment number 52, asked the minister to move formally. Formally moved, convener. Thank you. The question is that amendment 44 be agreed to. Are we all agreed? Yes. Call amendment 45 in the name of the minister. Already debated with amendment number 52, asked the minister to move formally. Formally moved, convener. Okay. The question is that amendment 45 be agreed to. Are we all agreed? Yes. The question is that section 76 be agreed to. Are we all agreed? Yes. And the question is that section 77, schedule 1, section 78, section 79, schedule 2, section 80, section 81 and the long title be agreed to. Are we all agreed? Yes. Thank you. That ends the consideration of amendments at stage 2. I would like to thank the minister and the officials for their attendance today. That concludes the public part of our meeting today. I will also allow the minister and the officials to leave the room and then move the committee into private. Thank you very much.