 Felly, y next item of business is a debate on motion 10595, in the name of Siobhan Brown, on trust and succession Scotland Bill at stage 1. To make members wish to speak in the debate, to press the request to speak buttons now or as soon as possible. I call on Siobhan Brown to speak to and move the motion. Minister, around 8 minutes please. Presiding Officer, I value greatly the law reform work that the Scottish Law Commission undertakes to simplify and improve our laws, and I remain committed to bringing forward bills to implement its recommendations. The Trusts and Succession Bill, which we are discussing here today, is a second SLC Bill that this Government has introduced this session. The most recent programme for government included a commitment to bring forward a third this year, and since Parliament updated its rules in 2013, this will make it the eighth SLC Bill in this decade. I recently wrote to the Commission setting out that my officials have begun detailed work on another three SLC reports on leases, contract and cohabitation, although decisions on the legislative programme are a matter for the Cabinet to decide as part of the development of the annual programme for government. I would like to take time to thank the Scottish Law Commission for their work that they do and in the case of trusts, and Lord Drummond Young, who is not only the ex-chair of the SLC, but also the lead commissioner who prepared the report on trust law reform and whose recommendations this Bill implements. I would also like to thank the Members and Clerks of the Delegated Powers and Law Reform Committee for their work in scrutinising this Bill and for the comprehensive and measured Stage 1 report. I welcome the Committee's agreement of the general principles of this Bill. Trusts are an important legal structure in the Scotland. In modern society, they are used as a solution and in incredibly wide variety of situations, and as we have all heard from the evidence given to the committee so far, they are used extensively in individual estate planning and to protect and administer the assets on behalf of vulnerable people, such as children, adults with incapacity and for people with disabilities. They are also a legal form of many pension funds and are often used in commercial transactions to set funds aside to deal with future liabilities. Scots law has not kept up to date with the variety of ways that trusts are used. The principle trust law legislation is now over 100 years old and was drafted at a time when society was very different. The aim of the Bill is to modernise the law of trusts and it takes forward all the substantive recommendations for reform proposed by the SLC. Perhaps the minister could address the issue that is raised by the Law Society of Scotland when they say that it is a missed opportunity to enact legislation on the nature and constitution of trusts. They talk further about the need for legal definition and the nature of a trust in Scots law, rules for creation, special rules for trusters and trustees, trusts, latent trusts and so on. They have a lot of things that they feel that the Bill does not contain. Would the minister address why the Bill, as it stands, does not contain any of the things that the Law Society of Scotland mentions in its report to all of us? I thank the member for the intervention and I did see that report yesterday. There is a lot in that and I will be coming on to further in the debate. Given the versatility of the trust and the uses it is put to, the Bill will make sure trust law is clear, coherent and able to respond appropriately to modern conditions. Some of the key changes made by the Bill include the method for appointing and removing trustees, including introducing a non-judicial method for removing trustees, reforming the powers and duties of trustees, setting out trustees' duty of care and a number of important powers conferred on the court, including a new power to alter trust purposes, after a period of 25 years has elapsed. Stakeholders have broadly welcomed the Bill and its policy intent. While many have been positive, I am also aware that there have been points of detail raised which have been identified in the committee's report. The committee heard evidence from a number of academics and legal professionals about the investment power of trustees. The Bill largely restates the already existing statutory investment powers of trustees and in general very wide powers of investment are conferred on trustees and these are tightly constrained by the trustee's duties, including their duty of care and fiduciary duties. Stakeholders would like to see something in the Bill about the ability of trustees to reflect environmental, social and governance goals in their investment decisions. One of the areas of concern is the interrelationship, be it either parallel with charities law or indeed where it crosses. Will you be able to deal with that in the opening as well? I will be coming to that. I have heard that having an express provision would be helpful to make clear that when assessing the suitability of an investment for a trust, financial returns are not the only consideration that may be taken into account. Environmental and social impacts, for example, could also be relevant considerations and I will consider this further looking forward to work with the committee on this matter. Another issue raised by the committee is the expenses of litigation. Awards relating to litigation expenses are at the discretion of the court. Currently where an award is made against trustees, normally the trustee would be personally liable but will have the right of relief against the trust estate provided that the expenses are necessarily properly and reasonably incurred. The bill will alter this. Trustees will no longer be personally liable for expenses. The court can, however, impose personal liability on trustees for those expenses in certain circumstances. That includes where the trust property is insufficient to meet the expenses of the trustee has bought about the litigation by breach of duty. As some stakeholders pointed out, trustees of underfunded trusts have an unfair advantage in raising litigation without being personally liable for expenses. The result would be that successful litigant would be forced to meet expenses themselves. I have heard the strong statements made by the law society in particular that this may put people off accepting office and will act as a dissentent to put them off being trustees to litigate. My officials met with them and with step over the summer to hear more about their concerns. I will take this away and consider what more can be done in the bill to achieve a better balance between the personal liability of trustees and the problem of underfunded trusts litigating. Another issue raised by the committee is how incapable is defined in the bill. The bill takes a slightly different approach that is found in the capacity legislation and the consumers raised that the two approaches could deviate unacceptably as future reforms are made. I recognise the problem and I thank the committee for the work done on this matter. I will again look at this issue and consider what could be done to lessen stakeholders' apprehensions on this issue. Finally, I would like to talk about succession. This is the trust and succession bill. Two provisions on succession law are included in the bill. One is technical and is intended to clear up potential confusion with the drafting of a section in succession Scotland Act 2016. The other is more substantive. It makes changes to the order of interstate succession so that spouse or civil partner of a person who has no children and dies without leaving a will would inherit the entire estate of the deceased person. This change reflects what many people would expect to happen already but which is not in fact reflected in current law. One issue that has not been included in the bill but which I am committed to finding a solution to involves the circumstances where an unlawful killer is appointed to be the executor of their victim's estate. The existing law on this is unclear, which is why I instructed my officials to consult over summer with targeted stakeholders. The aim was to test two models that may provide a solution to this deeply upsetting situation. It is important that whatever we take forward is capable of working in practice because we do not want the situation where the deceased estate cannot be administered or its administration is called into question. I have kept the committee up to date on this issue and I will continue to do so. I move that the Parliament agrees to the general principles of the trust and succession of the committee. I now call on Stuart McMillan to speak on behalf of the Delegated Powers and Law Reform Committee. Mr McMillan, around seven minutes. Thank you very much, Presiding Officer. First of all, I would like to thank all those who have contributed to the committee's scrutiny of the bill, whether it is in writing or appearing before the committee during one of our evidence sessions. I also like to thank the minister and her officials for the evidence that they have provided to the committee and the reply to our stage 1 report that came in yesterday, and to the Scottish Law Commission for proposing the bill. I would also like to thank my fellow members of the committee for their enthusiasm and tenacity in grappling with some of the issues raised by the bill. The minister touched upon the latter point, which I will come on to later in my contribution, which was certainly one of those areas in particular. Finally, I would like to thank the committee officials who have been excellent with their assistance to us. We are clear that the bill proposes important reforms that will benefit people across Scotland. As we will be aware, one of the responsibilities of the Delegated Powers and Law Reform Committee is to scrutinise certain Scottish Law Commission bills. Those bills can often be perceived as being quite technical. I believe that the committee's scrutiny of the trusts and succession in the Scotland Bill proved to be not only interesting but also showed the importance and relevance of the legislation to everyone living in Scotland. At the outset of the debate, it is important for the chamber to consider how important both trusts and succession law are for our constituents. A trust is a legal device for managing assets. A person or, to use the technical term, a truster passes assets to the trustees. Normally, that is for the benefit of individuals known as beneficiaries. Beneficiaries can include small, defined groups or individuals, or large numbers of people and organisations. Trusts are used frequently to help to manage estates after a death by community-based groups and organisations such as churches and charities, and individuals for a whole raft of reasons. There was almost universal support for the proposed reforms in the bill. Stakeholders reaffirmed to the committee how important trusts are in Scotland. The Scottish Law Commission told us that trusts permeate Scottish society. We also heard that the reforms represent a significant improvement on existing trust law, which is over 100 years old, and consequently very difficult to use and understand, particularly for lay people who actually do become trustees. Succession law, sometimes called inheritance law, sets out who should inherit someone's money, property and possessions in the event of a death. Something that we all know will come to every single one of us. The fairly modest provisions in the bill, in front of us, were again generally welcomed by stakeholders. Notwithstanding the support that we heard in the bill, the committee also heard that there was room for improvement and made a number of recommendations, some of which I am now going to touch upon. I am grateful to the convener for giving way, and I also would like to say personally that we all owe the committee a debt of gratitude for the work that has been done on the stage and the report that has been presented to Parliament. I would like to ask the convener, Deputy Presiding Officer, why it is that the committee feels given what he has said, why a full codification of trusts, as per my earlier intervention on the minister in respect to the Law Society of Scotland's submission to it, why that was not felt by the committee to be appropriate at this time? I thank the committee members who are in the chamber, and I am sure that I will stand to be corrected if I am incorrect here, but from memory it was because of the length of time and the challenge that that would possess, certainly for the Government and Parliament, to get that right. There was no shortage of will or desire for that to happen, but the length of time for that to take place would certainly delay the implementation of the bill that has actually been through Parliament. As I said, no doubt colleagues will correct me if I am incorrect with that. Certainly one of the areas of the new power in the bill for a majority of the trustees was to be able to remove another trustee on certain grounds, including where the trustee is deemed incapable. Although witnesses generally supported the provision, some stakeholders told the committee that they had concerns in relation to the potential for abuse, the subjective nature of assessing incapacity and the burden of placing the assessment of capacity on trustees who may feel unqualified to take on that role. The committee acknowledged that there is a route for someone who has been deemed incapable to challenge the removal-based one in capacity through the courts. However, it felt that this route might not be clear or obvious to a trustee in that particular situation. The committee therefore hopes to see changes to the bill, which would include explicit reference to the right of a trustee deemed incapable by fellow trustees to go to court to challenge the decision. The committee considered that this might be helpful to someone who finds himself in that particular situation. We also considered the point about the future proofing of that aspect of legislation because of the different definitions of incapacity that companies exist. The committee was also able to scrutinise the bill's potential interaction with Scotland's journey to net zero. A particular issue raised by the committee was the question on whether wording should be included in the bill to expressly permit trustees investing trust property in the absence of any relevant provision in the trust deed to choose so-called ESG investments, such as environmental, social and governance. Those are considered to be more sustainable investment choices, chosen based on their environmental, social and governance credentials, even if those might not lead to the maximum possible income for the trustee. One witness, Siobhan Evans, suggested that this would be an, I quote, attractive and model approach, supporting Scotland's net zero goals through, although some witnesses considered that the power may already exist. The committee therefore recommended that the bill be amended to explicitly allow trustees subject to the terms of the trustee to choose to invest in ESG investments, and we look forward to working with the Scottish Government to make this happen and once again welcome the minister's response in this particular regard. The committee clearly heard the views of stakeholders such as the Law Society of Scotland who expressed concerns about the bill's default position on the personal liability of trustees for court expenses in cases where the trust property is insufficient to cover any such costs. The Law Society also pointed out that non-recovery is a standard risk of litigation and it was unclear why the situation should be different in litigation involving a trust compared to, for example, a company. Presiding Officer, I would like to now cover issues that are not currently included in the bill. First, firstly in trusts, unlike the original draft bill from the Scottish Law Commission, the inclusion of a pension trust in its definition of a trust that does not appear in the bill and this concerns some stakeholders. However, the Scottish Government has confirmed that it is in talks with the UK Government to grant an order under section 104 of the Scotland Act 1988 to apply the changes proposed in the bill to pension scheme trusts. As colleagues in the committee will know, I highlight this section 104 order on a regular basis because, as we had in the bill for transactions bill and also this particular bill, there can be a delay between 12 and 18 months of getting that section 104 order through the system. Now I welcome the fact that both Scottish and UK Governments are in discussions on this particular part of the legislation and, hopefully, that would progress sooner than 12 to 18 months. The committee therefore recommended its priority at the timely implementation of the order to ensure commencement of the bill is not delayed and that there is no need for an undesirable dual operation of trust laws. Finally, turning to issues that are not covered in relation to succession law, some stakeholders considered that the bill should be amended to clarify the law that does not permit an unlawful killer to be an executor in the victim's estate. If unlawful killers are appointed as executors, even if they cannot inherit under the existing law, their continued personal contact with the victim's family under the guise of winding up the estate could be considered distressing and it would be. The committee therefore recommended the bills amended to clarify that the law does not permit an unlawful killer to be an executor of the victim's estate. Furthermore, the committee considered that notwithstanding the presumption of innocence, it would appear to be inappropriate for a person charged with murder or culpable homicide to act as an executor during the course of the prosecution. I think that the committee spent a great deal of time on this particular matter, Presiding Officer. I think that we all want to get to the same point, but we also recognise that this is a very challenging aspect to get right. Finally, Presiding Officer, if the bill that is successful proceeds through Parliament, it will help our constituents in every single part of the country. It won't fix the problems facing many people who have been stung by the McClure solicitors fiasco, but I hope that it can prevent many more people from being stung in the future and also being out of pocket. We look forward to working with the Government in advance on stage 2, and I do certainly commit our committee's report to the chamber. Thank you, Mr McMillan. I now call Oliver Mundell, who joins us remotely for around six minutes. Thank you, Presiding Officer. I start by apologising to other members for participating remotely. I had planned to be in the Parliament in person, but I've had flu symptoms on a temperature overnight and felt at best not to bring that into the chamber. Turning now to the bill before us, I want to say at the offset that the Scottish Conservatives will be supporting the bill at stage 1 at decision time and endorse the delegated powers and law reform committee's report. While the law affecting trusts may not be at the top of the political agenda, it's clear from the work undertaken by the Scottish Law Commission, the Scottish Government and, laterally, by the committee itself that, after a century since the last major reforms, modernisation of the law is not only desirable but is badly needed and broadly supported. As it stands, the bill represents a significant step forward, but there is still detailed work needed to ensure that the legislation is workable and to address the concerns of key stakeholders. The committee identified that, too, there is still work outstanding on a number of the areas of the bill, and agreed that it was sympathetic with concerns raised by stakeholders in both parts 1 and 2 of the bill. More generally, as I also pressed the minister on at committee, there is a feeling in some quarters, especially in the context of having waited 100 years, that the bill is a missed opportunity to do more, particularly when it comes to maximising the codification of trust law. My colleague Stephen Kerr asked a question to the convener of the committee about why the committee was content to proceed with the bill when concerns have been raised on that. Part of the reason for doing so was, as Stuart McMillan said, because of the delays that it would have caused to start substantive new work on the bill, but there was also strong evidence from a number of witnesses including from the SLC that there are areas of trust law that are not settled, where the case law is not sufficiently established to support full codification. I remained keen that we saw more codification and I know what the Scottish Law Society says in its briefing ahead of today's debate, arguing that there could be more on the nature and constitution of trusts. I would be interested, like the law society, to hear more from the Scottish Government on what other options it is looking at to take this work forward outside of the bill to help, in particular, to define different types of trusts. I would be keen to hear more from the minister on that in closing. I move on now to some of the particular issues that need further attention and let me be clear that, while this is an SLC bill, it is important that I am keen to take the intervention if that is possible. Martin Whitfield, I am very grateful to the member to give way. With regard to the question of charities that I raised earlier, does he have concerns about the challenge that some charities, so many of which are fundamentally based on trusts, that some elements of the current proposed bill may cause confusion? Yes, I do share that concern and it is something that the committee thought about. I know that other members of the committee are concerned about, too. It is a complicated landscape and that is why one of the key recommendations in our report is making sure that there is good guidance available, recognising the fact that many people involved in trusts do so as volunteers or come to the law without a detail, experience and understanding in anything that the Government can do to help to provide that clarity. Moving forward, I think, is really important. I am moving on to some of the key issues. While it is an SLC bill, I think that it is important that the Scottish Government and the Minister take ownership over it to ensure that the concerns and suggested improvements that have come to light through the parliamentary process are acted upon fully considered and where possible are incorporated into a strengthened final bill. I think that it is tempting to think that it all falls back on the SLC or on others, but I am pleased that, as we see the minister's response to the stage 1 report, the Scottish Government seems to be taking an active interest in resolving some of the committee's concerns. I know that the minister has touched upon section 65 in her own remarks regarding litigation expenses, but I just wanted to re-emphasise from the committee's report and from my position that concerns do continue. The Law Society has been quite outspoken in its original response. It has stated that this is quite a radical provision. There are real issues with the default being that the trustees personally pick up the liability for expenses where the trust property is insufficient, unless they can show that that would be unfair. That may put people off accepting office and will more than likely be a disincentive for trustees to litigate. That gives me cause for concern on two grounds. Firstly, I am not sure that SLC bills are the place for radical provisions and major departures from existing practice. I am also concerned about the practical implications that this might have with many individual trustees left potentially protecting their own financial interests, rather than doing what is best for the trust. I understand that there is a fine balance to be struck, but I believe that this section of the bill needs further work and clarification. I welcome the confirmation that the minister is considering this and hope that the Government brings forward amendments at stage 2 to make the provision absolutely clear. I would also be keen to understand the evidence of underfunded trusts entering into litigation and to get a sense of how much of a real problem this is at present. That is something that I have not seen and not heard any real evidence of. I would also like to draw the minister's attention to section 61 and the 25-year limit. Again, I was pleased to see the Government welcome the committee's recommendation and understand that this is being considered with a view to bringing forward an amendment at stage 2 regarding the circumstances in which an application can be made to the court. While a range of views were expressed, the committee agreed on balance that the 25-year period in the bill is appropriate, but we stated that we would like to see a caveat added, which would allow the court to permit alteration of the 25-year period in exceptional circumstances. That would enable the law to capture those circumstances, for example which were not reasonably foreseeable at the time that the trust was created and which are detrimental to the operation of the trust. This, to me, seems pragmatic and would strengthen the bill. Finally, on specifics, I also want to flag up on-going concerns about incapacity. I know that that has already been mentioned by the convener and the minister, but how it is defined in the bill and how things will work in practice definitely remain on-going concerns. I am sure that other members will cover that in further detail. However, I am very clear that amendments are needed here if we are going to have confidence that we have the legislation right. In closing, I commend the committee's stage 1 report, which covers these and many other aspects of the bill in much greater detail than I have managed to do in the time that I have wanted today. What is clear is that we have an important and much-needed piece of legislation in front of us, and I am hopeful that, through stage 2 and stage 3, we can get to a point where we can all be confident in it. Michael Marra welcomes the Trusts and Successions Scotland Bill and is grateful to the Scottish Law Commission for its body of work on both trusts and successions. Those in the legal profession have had to work around the complexities and more arcane aspects of the Trusts Act 1921 for many decades. A new act reforms and clarifies some aspects of the law relating to trusts for the 21st century is most welcome. We are grateful to the many representatives of the legal profession who gave evidence to this effect at committee. I can also place on record my thanks and Labour's thanks to members of the Delegated Powers and Law Reform Committee for the scrutiny of the bill thus far. Although the bill was broadly supported by stakeholders and indeed by the committee, there remain questions for the minister and her Government to answer with regard to the Trust's reforms. Given the inconsistencies with the 2000 Adults Within Capacity Act, were noted, will changes be made to the definition of incapacity? I will offer some clarity in that area. What clarifications will be provided on trustee's duties to provide information and exactly what information must they provide? I welcome the confirmation from the minister that she would ask the UK Government for a section 104 order so that pensions could be included in the scope of the bill. In the event that the bill passes, I urge both Governments to work constructively to that end. Too often, good governance suffers in this country from the inability of the Scottish Government and the UK Government to put aside political grievance and work together to the better ends of all Scots. In this case, I hope that that is not what happens. If we are able to pass a bill into legislation that provides a single coherent statute on trusts, we will have served not just the legal profession but all those who make use of trusts well. There has been some commentary so far on just the great extent to which citizens rely and institutions rely on trusts across Scotland. Regarding the succession, the reforms included in the bill are also certainly welcome. It is right that the bill takes cognisance of modern attitudes. When a person dies, intestate and without children, the bereaved spouse or civil partner should inherit their estate. At a time of great loss, the law should not be adding to the burden of the bereaved. As the law society raised, there remain some uncertainties regarding what happens if a person dies intestate while separated from their spouse or civil partner. It would be helpful if the minister could provide further clarity on the Government's position in that matter. It is clear that there is still work to be done on the bill for it to be a comprehensive piece of legislation on trusts and succession. My colleague Stephen Kerr has already raised those issues as raised by the Law Society of Scotland. Spice also pointed out that part two of the bill would still leave much of the Scottish Law Commission's work to date on succession law on implemented. In 2020, the Scottish Government said that it would legislate at, and I quote, at the next available legislative opportunity on banning a person convicted of unlawful killing from being an executor of their victim's will. In February of this year, the Scottish Government reiterated its commitment to that reform. I was glad to hear the minister in another opening statement acknowledging that the bill, as it stands, does not put that scenario beyond doubt and that there is a clear opportunity here to make good on the commitments of the Government and to put that in place. During scrutiny of the bill, the minister told the committee that she would explore what could be done in that context to ensure that there is that clarification of the law, and again she has reiterated that today. I believe that Stuart McMillan made strong comments on that issue and I think that we would be broad support if we could make sure that that was dealt with. While the number of cases may be small, I am sure that we can all agree that such a situation would be intolerable for a family and loved ones of a victim. I would urge the Government to remove this cruel and untenable anomaly of our legal system without delay. I look forward to the rest of the debate. Labour supports the principles of the bill as it stands, but we believe that there is scope for further amendment and I look forward to other members' contributions. Before we move to the open debate, just a gentle reminder that members participating in the debate need to remain in the chamber both for the opening speeches and the closing speeches. I call first Bill Kidd to be followed by Stephen Kerr around four minutes, Mr Kidd. Thank you very much, Presiding Officer. I do not even know who will take that, but I will try. As a member of the Delegated Powers and Law Reform Committee, it is a pleasure to speak today and ask that Parliament agrees to the general principles of the Trusts and Successions Scotland Bill at stage 1. Our stage 1 deliberations members of the committee broadly welcomed the bill and, in our report, noted that there was widespread support for the bill from stakeholders, acknowledging in particular the importance of trusts in Scotland alongside the need for the law to be modernised. As we have heard our statutory law on the management and administration of trusts is now over 100 years old and has its roots in a very different era from now, it is clear that the law in this area has not kept pace with how society has changed and developed, and this bill will bring the current legislation into 21st century. Of course, while we are supportive of the aims of the bill, we also listen to concerns raised by stakeholders. I am confident that our approach to the bill at stage 2 will address many of those concerns. Specific concerns were raised regarding the bill's potential interaction with Scotland's journey to net zero. I can assure stakeholders that the committee looks forward to addressing those concerns by working with the Scottish Government to amend the bill to explicitly allow trustees, subject to the terms of the trust deed, to choose to invest in ESG investments. We also heard concerns raised by stakeholders about the bill's default position on the personal liability of trustees for court expenses in cases where the trust's property is insufficient to cover any such costs. Our view is that the starting point should be that there is no personal liability on the part of trustees for expenses unless deemed otherwise by the court, and we look forward to discussions with the Scottish Government regarding considerations as to whether such an amendment is required to reflect that. One issue of possible concern that is currently not covered by the bill, but that I would like to mention for the record, is that of the need for the inclusion of a pension trust in its definition of a trust. In this regard, we urge the Scottish Government and the UK Government to grant a section 104 order to apply the changes proposed in the bill to pension scheme trusts. We hope that the Scottish Government and the UK Government will work in close collaboration to this end in order to ensure smooth enactment of the bill. To conclude, Presiding Officer, I want to end by re-emphasising what the convener, Stuart McMillan, said. Although the Trust in Succession Scotland Bill is a technical bill, I hope that members will agree that the committee's scrutiny has shown it to be anything but dull. Instead, we have shown that the bill has proven to be an interesting and important piece of legislation, one that proposes to modernise the existing outdated trust legislation. We are clear that the bill proposes important reforms that will benefit people across Scotland, and we look forward to working with the Scottish Government on the issues that have outlined and more in advance of stage 2. I have already put it on the record that I am grateful to the Delegated Powers and Law Reform Committee for their stage 1 report. On the surface of things, it seems like a technical bill. While I have had to deal with lawyers professionally throughout my career before I go into politics, I am no lawyer. That said, however technical it may be, it is in the subject area of the greatest importance to the people of Scotland. It relates in part to an experience that somebody mentioned that we will all have sooner or later. We should not resist—this is my basic contribution to this debate—the common sense of the people of Scotland when it comes to the law. In this area of the law, many people carry with them a perceived sense of what they feel is right, and sometimes it is not right. We should listen carefully to the common sense of our constituents in matters such as those as we do the legal counsel of esteemed and learned lawyers. I would like to thank the passage of the bill that presents us with an opportunity to encourage everyone in Scotland to make a will, because there are complexities and unexpected legal hoops to go through when someone dies without having set out their last will and testament. When it comes to making a law, Scotland's law is based in good old-fashioned popular common sense, but when there isn't a will it is far less straightforward and the way more unpredictable than most people are expecting. People assume that when they die or their spouse or partner dies, their other half will inherit their estate. People assume that when assets in a trust are divided in favour of the trustees that the trust can easily be wound up, people assume that when their spouse is incapacitated that they will be able to act on their behalf in financial and other matters. People assume that the law on such matters will be straightforward, accessible and easily understood. Common sense is not always reflected in the law. Of course, the law should be kept current and relevant, that's why I am glad that the Conservatives are supporting this bill at stage one. As it happens, the law in the areas of this bill seems to become rather untidy and far from accessible, but I don't shy away from saying that we should consider the law in the context of what the people consider to be within the scope of their expectations. In other words, what people consider to be sensible and reasonable. We should have law, as in the instance of this bill, that is clear and understandable. That is what I mean when I say it and I think other members mean when we use the word accessible. That reflects the fairness that people expect. It shouldn't require payments of thousands of pounds to expensive lawyers to unravel and explain. It should, in short, be user-friendly. The provisions of the bill—yes, of course. I am very grateful to Stephen Kerr for giving away, and I wholeheartedly agree with much about what he is saying. My only question is, does he still have confidence that the present bill that sits before us, which comes under the Scottish Law Commission, does so under its special procedure that there are non-controversial elements to it? Does he feel that his request perhaps gets close to the boundary of potential controversiality, which may require a different approach by this place? Stephen Kerr. I am grateful for that intervention. In fact, I do not think that there is anything terribly controversial in what I am saying. What I am addressing is the expectations that people have about how the law operates in situations where they go through the loss of a loved one. Their expectations are often founded on the basis of what they think is reasonable and right, but the law does not necessarily provide them with accessibility when it comes to these matters. The provisions of the bill seem to attempt to consolidate and simplify elements of trust law. The provisions of section 72, I would call out, are a step in the right direction, but I retain some concerns. When someone in your close family dies, it is a time for grief. As the late Queen famously said, grief is the price that we pay for love. For all of us as human beings, the process of grieving is important and needs to be handled with compassion and with understanding. Expecting those who are grieving to grapple with complex legal issues is unreasonable, and we should seek to reduce the burden of complexity in the bill. Stuart McMillan I thank Stephen Kerr for taking the intervention. I would like to reassure Mr Kerr that, during our deliberations on committee, that particular point came up. The bill was suggested for six months, so we did make a recommendation in our stage 1 report for that to be extended in particular circumstances because of the points that Mr Kerr is raising. Stephen Kerr I am grateful for that intervention and welcome what the convener has reported. Changing the law to ensure that states are inherited by the spouse when there is no will and no children is a welcome reform. That being said, there is still room for ambiguity if the relationship is broken or has been broken for some time. A former partner, for example, should not have priority over children. There is an opportunity here that we are perhaps wasting, as I alluded to in my interventions on the minister, to do the full and serious reform that I think we acknowledge needs to be done. However, the number one thing that I would like to say in my speech that I hope is a contribution to the broader public's awareness of this bill is that people should make wills and that those who do not have a will need to make a will so that they have a more clear and unambiguous route to resolving those matters. I may make myself unpopular with some of my colleagues in this chamber when I say that the involvement of lawyers in my experience often brings with it a burden of complexity and cost that very often does not need to exist at all. We should trust the people through good and simple law to use their common sense. The law, as passed in this Parliament, should back the people up in doing the right things and in meeting their expectation of right outcomes. I hope that the scrutiny of this bill at stage 2 is rigorous to make this bill fit for the expectations of the common sense of the Scottish people. Thank you very much, Mr Kerr. I now call Keith Brown to be followed by Martin Whitfield around four minutes, Mr Brown. Thank you, Presiding Officer, and can I just reassure Stephen Kerr that I think it's very unlikely he'll make himself any less popular than he can be this. I can also say that I do agree with the central point that he made, at least one of them, which was when we do this kind of reform, we really should have an idea on what's important to local people. This touches on some of the most intimate affairs of the general population, and it shouldn't be shrouded behind legalese or legal access. It should be as accessible as possible. Having said that I support the bill, it sits comfortably in the Western European tradition of economic affairs taking place in an organised setting, and both trusts include the found rules on inheritance and succession have been a part of Scottish life for centuries. Today, many people across Scotland are either connected to a trust or are, themselves, a trustee in matters of inheritance and succession that are dealt with across Scotland on a daily basis. That shows that, while this is a largely technical piece of legislation, it is an important one for many Scots. To go back to the point that Stephen Kerr made about making sure that it's accessible as possible, another example in the criminal law would be the idea of not proven, where not proven sheriffs and judges are not allowed to explain the implications of a not proven verdict, which is the reason why I change my mind on the abolition of not proven. If you cannot explain to the public a principle of law that is not accessible, it is very important to make this as accessible as possible. As has been said before, the main piece of existing legislation and trust state back to 1921, making the law effectively over 100 years old. Of course, the language in the 1921 act is challenging and outdated, but the numerous amendments to the legislation since then make it immensely challenging for trust creators, trustees and other beneficiaries to understand their rights and responsibilities within the system. To put it simply, our society has changed, but our trust laws have struggled to change with it. Let's not forget that trusts are not only about financial matters, they are used extensively by charitable organisations and pension funds. They can be used to protect and administer assets on behalf of vulnerable people and to streamline business operations by setting funds aside to deal with potential future liabilities. In an ever-changing world, the trust law must therefore be robust, adaptable and above all, comprehensible as well as accessible. Therefore, one of the main purposes of the bill is to modernise, centralise and clarify the rules on trust in Scotland by creating a single accessible statute, which will ensure that both individuals and professionals can navigate the law on trusts with confidence. In short, the bill offers the Parliament an opportunity to make the lives of everyday Scots just that bit easier. However, the bill is not only about updating the law on trusts, it is also about modernising and clarifying the rules on succession and inheritance. Just for the record, I am totally opposed to the proposed changes to inheritance tax that the UK Government is currently talking about. Inheritance is primarily a matter for families and relationships, and just as the role of trusts have changed since from 1921, so to have many of the societal norms relating to families and relationships, the bill aims to update the law on succession in line with those societal changes, and to propose simplification to succession rules is a testament to that. We recognise the changing role of spouses and civil partnerships in our society, and it is important therefore that the law should acknowledge them as key members of the deceased's family in the new definitive statute that the bill proposes. Further to that, the bill also proposes a more equitable approach to biological, adopted and step-children in the event of the death of a parent. That is also a much-needed change. The bill is a product of two large-scale law reform projects undertaken by the Scottish Law Commission, and it has spanned over a decade and involved extensive consultations, discussions and reports. It is clear that our Scottish law on trust and succession is coherent and adaptable to the modern world. In conclusion, the trust and succession Scotland bill is a significant piece of legislation that updates our legal framework with the needs of our modern society and makes it readily accessible to the public. It simplifies trust laws, ensures clarity for stakeholders, and it acknowledges the changing dynamics of our families. I urge all my fellow Parliamentarians to support this bill, recognising that its passage will benefit not just us today, but generations still to come. Thank you, Mr Brown. I now call Martin Whitfield to be followed by Willie Coffier in four minutes. I'm very grateful, Deputy Presiding Officer. Just as a point of clarification and declaration, I am in fact a charitable trustee of a charity that is not actually based in Scotland, but I put that on the record, although I receive no remuneration for it. It's a great pleasure to follow Keith Brown, who of course sailed this bill into the Parliament back in 2022, and I endorse much of what he has said. I would like to take the relatively short time that I have to discuss the question of the interface between charities and indeed this proposed bill, and in particular, rather than the succession element of it, with regard to the fact of trusts. Trusts form a vehicle that charities frequently use. There are a significant number of charitable trustees across Scotland, many of them volunteers, which has already been pointed out, I think, by the convener of the committee. Can I give my admiration to the convener and the committee for the work they've done, and in particular the preparation of the report? There are some fundamental charitable pieces of legislation, and indeed the most recent, the Regulation and Administration Scotland Act 2023 came about during the time that the committee, in fact, was overseeing this bill, and so I do have questions which I hope the Minister can answer with regard to the interplay and the consideration that's been given between charities and indeed this bill, and I do so because I think the role of charities at this time, particularly with the economic crisis that so many people are facing in the roles, I think, of our food banks, I think of those groups built into our communities that help and support people, that the role and responsibilities of charities is ever-increasing, and indeed we should look forward to it, we should celebrate it, but most of all we should support it, and that hints at the concern that I have in relation to the present legislation. Concern not about what the proposed legislation would say, but more about the explanation. There has been a metaphor given that these are railway tracks that run parallel, so the charitable legislation is running parallel with the proposed bill that we have before us today, but I am not as convinced, and indeed some of the evidence that the committee heard, there are others outside of this place that are not as convinced that actually that's a perfect parallel. Different language is used, we've heard about the origins of the trust act here over 100 years ago, and indeed the passage of time means descriptions are often different, but I think it's in that my new shy that there is the potential of risk particularly for our charitable trustees. I very much welcome the response from the minister to the committee for their stage 1 report, particularly regarding paragraphs 102 and 103 of the report. I see that the Government are going to expand on the explanatory note to reach the committee's request to have a better explanation of how the various powers that sit within OSCA, the charity regulator here in Scotland, the two principal charitable acts here in Scotland, and this bill will interact. I think that's an incredibly useful proposal to make, because I think in doing that we may be able to tease out any challenges that potentially could come down the line. I'm slightly more disappointed at the Government's response to paragraph 103, where the committee requested an update of the Scottish Government on how the provisions of the Charities Regulation Administration Scotland Act will interact with the bill. There is a very strong description, which I understand and value of OSCA and the powers that OSCA has in emergency situations to appoint trustees, but there is a potential for a challenge there. I would do just at this stage, because I fully support the principles of this, to seek an undertaking from the minister in winding up that this will be looked at and we will be able to see evidence of the work that's done that I think will reassure a significant number of charities that are outside of this place. I recognise time is tight. Can I welcome the work that has been done? Thank you, Deputy Presiding Officer, for your patience. Thank you very much indeed, Mr Workfield. I now call Willie Coffey to be followed by Maggie Chapman in around four minutes. Thank you very much, Presiding Officer. The first thing I want to do is to thank the committee for the considered and detailed work that I've carried out at stage one, which seeks to update the law in two important areas of Scottish life, the management of and administration of trusts and the law as it relates to succession. I'd like to focus in part two of the bill that relates to succession and to share with the Parliament some views and the benefits of the proposals relating to the rights of spouses and civil partners, and what was and still is an area where a lack of clarity remains with the respect to the appointment of executors of a deceased person's estate. Firstly, in the proposals themselves concerning how to deal with intestines succession, the problem of what happens when a person dies without leaving a will. Currently, the range of beneficiaries are spouses or civil partners, children and remote descendants like grandchildren and even the parents of the deceased. Section 72 of the bill as I understand it proposes that the spouse or civil partner will become top of the statutory list of those entitled to inherit the free estate. That proposal seems to have been met with agreement from all those consulted and appears to be uncontested. If that proposal goes forward to the final bill, I'm sure that that will be broadly welcomed. An issue arose in relation to the complexities that may arise in dealing with separated partners. The Government suggests that there remains the ability of a partner to change their will and doesn't see the need to alter the legislation in respect of this despite the discussion that occurred at the committee. A word of caution perhaps in the succession debate, too, is that cohabitants are not part of the suite of possible inheritors and must make a separate application to the court to be considered to be a beneficiary. It can be done but requires court action on the part of the individual. Perhaps all that strengthens the advice to make a will that we heard earlier from Stephen Kerr. One important area that was discussed by the committee and for which some further work is probably required is in the case where unlawful killers can currently become executors of a deceased person's estate. I know only too well from constituency casework of the anguish that this brings to the family of a loved one, murdered by a person who then becomes the executor of the estate. Although a murderer cannot benefit directly from such an act, the role of an executor is a separate matter, which can at the very least cause prolonged delay and at worst a refusal to dispose of the estate. Application can be made to a court to remove executors but we all know that this can be extremely costly and usually doesn't proceed. So I'm pleased to see that the Government is committed to bringing forward the necessary reforms that would prevent a person convicted of murder from being an executor to their victim's estate. Yes, thanks. Stuart McMillan I thank Willie Coffey for taking intervention. I think that Mr Coffey would recognise the challenge that does exist, certainly with the present law but also going forward, because if somebody actually was a trustee before they were then convicted, they still are a trustee. So it's about trying to get a balance of what we all want to see happen to protect trusts and also the beneficiaries of trusts but at the same time there is also that presumption of innocence until proven guilty. Willie Coffey Absolutely and I think that the convener has explained there, Presiding Officer, is how tricky and difficult this matter still remains but I am pleased to hear that the Government is working on this and hopefully we will see that coming through stages 2 and 3. I also hope that this will prevent any circumstances in the future where a murderer can indirectly benefit from the future sale of his victim's property and that's absolutely crucial. Whether that can be achieved within the timescales for this bill isn't clear and perhaps the minister could say a little more about that in her summing up. Presiding Officer, in winding up my comments in this short debate, I'd simply like to finish with a positive comment for the careful consideration given to the issues highlighted by the committee. Those issues are not as straightforward as it might seem to some and perhaps the hundred years or so that has passed with no changes to some aspect of this might attest to that. Hopefully though it won't be another hundred years before we see some of those positive changes coming into effect and of course a resolution to the awful circumstances I've just outlined. So I wish the committee every success as it considers these important issues at stages 2 and 3. I now call Maggie Chapman to be followed by Emma Harper around four minutes. I want to begin by thanking the Scottish Law Commission for their detailed work over more than a decade on the different elements of this bill. I'm also very grateful to the Delegated Powers and Reform Committee for their consideration of the proposals of the past few months. The evidence gathered in the stage 1 report has been very useful to me as I've tried to get my head around at least some of what is in this legislation. Scottish Greens welcome this legislation. As we've heard, it's a technical bill that seeks to deal with the complexities that over a hundred years of acts, amendments and the like have created. It's intended to ensure that our laws on trusts and succession are clear, coherent and able to respond appropriately to contemporary and hopefully future conditions and requirements. It should make it easier for solicitors but perhaps more importantly for trustees and beneficiaries to understand what their legal rights and duties are and it clarifies among other things the rights of spouses or civil partners of people who die without having written a will. There are several things that I will watch with interest over the coming stages of this bill. Comments made by witnesses about what needs clarification or amendment and certainties about how this legislation will interact with charity law. Concerns regarding pension scheme trusts among others and of course I welcome the committee's recommendation that the Scottish and UK Governments pursue the timely implementation of a section 104 order to ensure commencement of this bill is not delayed. But I want to say just a couple of things about issues that this bill does not cover. Things that might be out of scope at this moment but issues that I hope the committee will have in mind as the bill progresses through the next stages to see if there are things that can be considered or at least have the foundation set for future work. I do note the comments by the minister in her opening statement about the further work that should be possible to ensure trusts support positive environmental and social objectives to enhance our environment and community wellbeing. I'm grateful for these comments and I look forward to developments in these areas. But specifically on land holding trusts, Scottish Greens believe that offshore trusts, blind trusts and private trusts that exist for tax avoidance or ownership secrecy should be prohibited from holding land. Further, primary beneficiaries of land holding trusts should demonstrate the productive use or development of land for good while being locally accountable and accessible. We must also ensure that our succession laws support our intentions and principles around collective benefit and fair inheritance of land holdings practices and do not contribute further to Scotland's land problem. Many of us in this chamber are concerned about the historic inequalities that are embedded in the structures and concentrated patterns of land ownership. We must not forget the powers within succession laws as we look to further land reform for community benefit. But I realise, Presiding Officer, that these points are perhaps beyond the technical parameters of the trusts and succession Scotland Bill that we discussed today. I do hope, however, that the DPLR committee will have these points in mind over the coming months. So in closing, Presiding Officer, can I thank the Law Society and all others for their contributions to Parliament's scrutiny and debate of this bill to date and wish the DPLR committee well as it continues its work on this important legislation? Thank you, and I call Emma Harper, the final speaker in the open debate. Thank you, Presiding Officer. I welcome this debate at stage one and I wish Oliver Mundell a swift recovery and I hope that he feels better soon. I also would like to thank the DPLR committee, the clerks and all others for their input so far. Scots trust law is widely considered to be out of date and the main legislation is now just over a century old dating back to 1921. And trust law is widely understood, including by the legal profession to be complex, difficult to understand, cumbersome and opaque. So therefore welcome that this bill will simplify trust legislation, making the process easier and simpler for all involved and accessible, which members have talked about already. Presiding Officer, the bill will bring the current legislation into the 21st century. In a modern society, trusts are used as solutions in an incredibly wide variety of situations. They are used extensively by charities and pension funds, as others have mentioned already, in commercial transactions to set funds aside to deal with future liabilities and in individual estate planning. Trusts are also used to protect and administer assets on behalf of vulnerable people such as children and adults with incapacity and disabilities. Although I know that through my own case work that trusts are also important to look after community assets and funds as well as for matters that may not automatically spring to mind. For instance, I have a constituent who told me about the importance of this bill for her and she and her husband use a trust to secure financial assets for their child who is in the custodial estate. That relates to Keith Brown's point about vulnerable people. So trusts are indeed hugely important. However, Presiding Officer, the state of trust law in Scotland at present is inaccessible and off-putting. Those who have had experience of these difficulties are reluctant to create new trusts, even if a trust represents the best option to provide the flexibility and protection sought. As reported by the Scottish Law Society, the inertia around trusts in Scotland is putting Scotland at disadvantage in contrast to other European nations and, indeed, other parts of the UK. Those issues are all ones that the Scottish Law Commission, the Law Society of Scotland and practitioners have commented on throughout the various consultations that led to this trust and succession bill. Indeed, I echo the comments of Lady Paton in her House of the Court of Session who said that there will be considerable rejoicing and relief among the legal community who deal with clients and find the 100-year-old law a major handicap. So we are moving in the right direction with this bill. However, Presiding Officer, as a healthcare professional and a member of the health committee, I am particularly interested in the provisions of the bill in relation to incapacity. Under section 3 of the 1921 act, all trusts are held to include the provision that decisions must be made by quorum, which has defined as a majority of the trustees accepting and surviving. That, however, does not include incapact trustees. That can lead to issues where trust decisions cannot be made if a majority cannot be achieved. The new trust bill addresses that. A definition of incapable is included within the bill at section 76, which closely reflects the Adults with Incapacity Scotland Act 2001 and refers to whether a person is capable of making, communicating, understanding and retaining the memory of decisions. In addition, section 12 of the bill now states that trustees' decisions are to be made by a majority of those for the time being able to make it, and that a trustee is not to be regarded as able to make a decision who is incapable. That, therefore, means that capacity can be determined on a decision-specific basis, allowing incapact trustees to continue as trustees and participate where appropriate without hindering the administration of the trust. I appreciate the comments made by the minister regarding incapacity and the commitment to look further at the issue of capacity or incapacity to prevent abuse. Presiding Officer, in closing, the bill will improve Scotland's law on relation to trust, and it is one that I urge members to support this evening at decision time. We move to winding-up speeches, and I call on Michael Marra. Thank you, Presiding Officer, and thank you to all members who have contributed to the debate this afternoon. I think that it has been peppered through with clarion calls for clarity in our law in this area, and I think that that is something that has been unanimity around the chamber on. Also, the importance of this area of law, the legal devices by which it states is what was one example of past, and is indeed important to many people across Scotland. There are many people who place property assets and trusts without any real clarity as to whether that is necessary. It incurs them at great and considerable cost, and it is far from clear at the moment as to whether that is something that is a step that they should actually take. So an emerging clarity in this area I think would be welcomed by many people for the purpose of good law and the better ends to which Maggie Chapman alluded to in her speech. The instrument million was started by telling us all that, just how widespread this issue was and how many people and institutions it touched upon. I thought that Stephen Kerr's contribution at that point when we were asking about the full codification of trusts was a very reasonable point made partly on behalf of the Law Society of Scotland who have called on it. I am not entirely sure that I would agree with the principle objection to that, that it would take a lot of time to act on that. I will come on to my concerns within that. For instance, I think that we have a debate next week on protecting this Parliament, taking up a considerable amount of chamber time, nothing more than political point scoring and posturing ahead of a by-election. I would say that the delay on the work of this bill would, in that regard, rather be indefensible in terms of chamber time. However, I am aware that the background of the bill takes a considerable amount of work from a lot of different institutions. I would say that the people who are using the law have waited a century for it to be reformed, and it would ask that perhaps we have slightly more delay in resulting in a better outcome would be worth considering. We have had, of course, 16 years of this Government. Oliver Mundell stood by my colleague Martin Whitfield's concerns around the problems that he wants to see between trusts and charities. It is difficult to see how that might be fully resolved without the full codification that the Law Society of Scotland is looking for. However, I do believe in the minister that I would appreciate his clarification or work from the minister to set out Martin Whitfield's suggestions of looking for a prioritisation of definitions as a useful step in that direction about how we can resolve that confusion. I think that there is a broader point to be made about the debate today, Presiding Officer, and the legislation. Frankly, the work of Government that people are elected to do in this place and holding them to account as we are as a Parliament. As I stated in my opening remarks, the Scottish Law Commission deserves recognition for the wide body of work that it has produced. However, it deserves more than that. It deserves that work to be acted upon. It could be forgiven for being more than a little frustrated at the numbers of reports and draft bills that have published which sit gathering dust on the shelf in St Andrew's House. Part 1 of the bill that we are debating today is based on a Scottish Law Commission report from 2014 and a revised draft bill from 2018. The reforms contained in part 2 are the fruit of law, reform, work and public consultation spanning over 30 years. While the main recommendations were contained in a 2009 report on succession from the Scottish Law Commission. Indeed, the Scottish Government consulted on those recommendations back in 2015, certainly. Stuart McMillan. I thank Michael Marra for taking the intervention. With that, Michael Marra welcomed the comments from the Minister of Parliament to the Business at the Delegate of Powers Committee on Tuesday and the First Minister yesterday at the conveners group where they both gave commitments regarding the SLC bills. What of them to come into the Parliament? Michael Marra. I certainly welcome that. I think that it's belated and it's been a long time coming. I'll come on to why this is particularly important. It's good to see the Government spending more of its time on the job of governing, frankly. The more of that we could have, the better. We believe that it's a good thing that the Government is keeping that commitment to implement some of those recommendations. We only wish that it had not taken quite so long. But back in 2021, the Delegate of Powers and Law Reform Committee raised the slow rate of progress with the Minister for Parliamentary Business. At that time, there were around 18 Scottish Law Commission reports going back as far as 2006, Presiding Officer, on which no legislation had been passed at all. There has, of course, been some progress, as we've mentioned, the Moveable Transactions Bill, passing into law earlier this year, is a good example. While I am pleased to see in the programme for government that one of the 14 bills to be introduced in 2023-24 is a Scottish Law Commission bill, a rate of one bill per year is hardly making significant roads into that backlog. I think that the reason for that is clear, Presiding Officer. For too long, this Government has been interested more in the work of grievance, rather, in the work of governance. I doubt if this bill, when it passes into legislation, will learn the First Minister or his Government a front-page splash. I would say that having a functioning legal system that governs those kind of areas is critical to one of what we are told is the key drivers of this Government. A proper, growing economy requires a stable and working and interpretable legal system where people can actually govern their own affairs. However, that is the hard work of governing. We do have a chance in this legislation to make some people's lives better. The parents using a trust to provide for an adult child who cannot provide for themselves. The bereaved spouse spared the burden of financial uncertainty. The trustees of a charity who find it that bit easier to administer funds and help those in need. Those people are not asking their Government for headline-grabbing high-stakes legislation with 11th-hour votes and controversies. They are asking for competence, compassion and dignity. They are asking for a serious hard-working Government. I thank all members for taking part in this debate this afternoon. I also want to thank the Law Commission for the clerks to the committee and those who gave evidence to the committee for all that they have put before us. As Oliver Mundell said in his speech, we on this side will be supporting this bill at stage 1. However, I think that there is a lot of work that needs to be done at stage 2 and 3. I think that there is quite a lot of heavy lifting that the Scottish Government still has to do. I absolutely agree that trust law needs changing. There cannot be any other area of law that both my grandfather, my father and myself all would talk the same thing at university for it to be three generations if not four generations old shows that it is time for reform. I am disappointed, I have to say, in regard to the Government's response around success in law. There is general agreement, both within my legal profession and within academia, that this is tinkering with the system. That was an opportunity to bring forward major reform in regard to success in law. For whatever reason, the Scottish Government has decided not to take that opportunity. The minister in her response to the committee report has said that there will be no further changing of success in law within this parliamentary session. I fully accept that to change success in law would be controversial, that there is no major agreement out there, but surely the role of Government is to lead. That was an opportunity for us to reform success in law to bring it into the 21st century. Instead, we are tinkering on the edges of it and we are simply bringing forward two areas rather than major reform. I think that that is disappointment. Great answer to that. I do not know, but I have listened for some time now to him telling the chamber how we are not doing enough when we are just tinkering. Can he just tell us what it is he wants in the bill and why he has not brought amendments about it? Well, this is stage 1, so stage 2 is still to come, but the intention was. Well, I would encourage the member to go and read the evidence that was given to us, particularly by the professors of law from Dundee. The issue that I have is that success in law needs to be brought into the 21st century, and it simply isn't. If he simply goes and looks at what has been said both by the Law Commission and by the academics, I think that that is absolutely clear. I am very grateful to Jeremy Balfour to give way, and I am in no way defending the Scottish Government or the choice, but this came about. It came about because of the Scottish Law Commission Bill, for which there is particularly provisions within the standing orders. If the bill matches certain criteria, interestingly, one of which is that it won't generate substantial controversy, it proceeds through in a different and one would hope more streamlined way. That's not to take away from the very valid points that may need to be looked at, but perhaps this is not the vehicle that we would have expected that to happen in. I think that that was an interesting question, which is interesting for debate, but what is clear is that success in law needs to be reformed. That this Government has had 14 years to do that. It had an opportunity, either in this bill or in another piece of legislation, to bring forward, and we have been told by them that they are not going to touch it for another at least two and a half years. If I can move on to the area around for trust law, I think that there are a number of areas that we need to seek clarification on, and we need to seek amendment as it goes through. If I can point out just a few of those. First, I think that there is a danger, and a number of speakers have pointed out, that we put people off becoming trustees of trust. Now, there is already evidence out there that it's becoming harder to find trustees for certain trusts to do that work, particularly small trusts, which do a really important role within local communities. I think that we just have to be careful that we don't put people off, or the perception is, and perhaps it's more a perception that there are financial problems that you could face yourself if you become a trustee. I think that it would be helpful for the minister to bring forward amendments to clarify that at stage 2. The second area, and I think that this is one that all members of the committee have struggled with, and I think that we will still have to think more, and I think that the Government is already thinking about this, is in regard to the definition of what it means for incapacity. There is no clear way forward. I think that Emma Harper and Oliver Mundell have raised this issue in the debate, and I think that we just have to be really careful again that whatever definition we ultimately come to as a Parliament, that we are confident that it will meet not just the lawyer's need, but actually more important for trustee's need, particularly where they are small trust and don't want to keep going to lawyers. Thank you, Jeremy Balfour, for taking the intervention. I think that Mr Balfour will also agree that, as a committee, we had considered the point of future proofing of this, so some type of mechanism as a delegated power would certainly help with that. Jeremy Balfour? I absolutely agree with Mr McWilliam, and I think that that may be a way forward, but I think that it's again something that we just have to look at. I fully agree with Mr Kerr to some degree that people should be making a will. However, I remind Mr Kerr of a great advert that the law society brought forward in the 1990s, but it's never too early to call a solicitor, and obviously that is same to today. However, we do have to make sure that Mr Kerr is right that the language isn't simply good for lawyers, but it is good for those who are working on trust day in, day out, so that we don't get caught out. If we can avoid lawyers being involved in things, that can only be good news. Can I agree absolutely with Martin Whitfield in regard to his concerns that he has raised about the interplay between trust and charities? I raised a number of questions to the expert witnesses around that. We just need to be clear in our thinking of how we're going to proceed. Finally, you'd be glad to hear, Presiding Officer. I do think that we need to look again at codification raised by Mr Kerr and Mr Whitfield again. We have waited 100 years to have this bill come through. We could probably wait just a wee bit longer if it is simply a time issue that the minister is concerned about. I think that we can pause and wait to do that if there is more for substantial reason why she thinks that it's not possible. I would be interested to hear that. This is a bill that is long overdue. It will be welcomed both by civic society and by the legal profession. I look forward to voting for it at stage 1 tonight. Mark Whitfield's speech he made a declaration of interest. I should also have made a declaration of interest as a trustee of a charity registered in England, the human rights charity. I want to put that on the record for any doubt. Thank you, Mr Kerr. While it's not a point of order, it is on the record. I call the minister to wind up the debate to 5 p.m. I thank all the members for their contributions to this afternoon's really helpful debate. I'd also like to repeat my thanks to the Scottish Law Commission for the decade of work which has gone into this reform project. I thank the Delegated Powers and Law Reform Committee for the work they have done gathering and listening to the evidence on the bill and for the recommendations. In general, the bill covers the powers and duties of trustees, the Administrations of Trusts, the powers of the courts in trust matters and one substantive provision on succession. The majority of the current statutory framework relating to the trust law is found in the Trust Scotland Act 1921. In modern trust practice the powers and duties of trustees are markedly different to those set out in the 1921 Act. The part played by the trust in commercial structures for instance means that the trust law is of economic importance. Trusts are widely used for investment and for financial planning. Other examples of the use of trust include supporting those who are unable to manage their own affairs due to, for example, as I mentioned, being underage or having a disability to ring-fence funds to ensure consumer protection, for instance, travel companies holding funds provided for holidays or to hold business or other assets rather than fragmenting ownership. Current legislation has not kept up with how trusts are now used and this bill represents a significant step to bringing the law up to date, making it easier for trustees, beneficiaries to understand what their legal rights and duties are. The SLC's reform project is a most significant review of the Scots law of trust in the last 100 years and this bill implements the overwhelming number of recommendations made by it. I think the SLC's recommendations overall achieve the aim of modernising trust law but committees, committee and members here today have identified some points of detail where they consider that improvements can be made on the bill and I'm pleased however that although there are these points of debate there is a broad support across the chamber for the general principles of the bill. I've listened to each of the points if I could just get on, I've got a lot to get on, sorry Mr Kerr. The points raised by the committee carefully and I will of course take these away and reflect on them before stage 2. I'm willing to listen to and where I can work with members across the chamber of this bill. Earlier I touched on the environmental, social and governance investing expenses of litigation and the definition of incapable and unlawful killers and assuming the office of executor to the victims of the state and I'd like to use the rest of the time to bring up a few other issues that were raised today by members. First of all codification has been brought up by several members today. Complete codification of any area of law is never straightforward work. The SLC considered codification of the law but ultimately rejected it. Its views as Lord Drummond Young told the committee was that some areas of the law were better left out of statute. For example, that some what abstract dual patrimony theory which underpins trust and the law around express trust or implied trusts. The bill does reform all the parts of Scott's trust law which has traditionally been dealt with by statute. It consolidates and modernises nearly all the statutory trust law. I'm content that the SLC has after extensive consideration of this issue identified the right approach to the bill focusing on reforming the parts of the law which create problems in practice. I understand the view of the committee that a comprehensive codification would make easier for a layperson to access and understand the legislation but as the SLC suggested in evidence in other jurisdictions where codification has taken place the statutory law is seldom absolutely comprehensive. If I may move on to presiding off a section 104 which has been raised by several members as well it is critically important that the bill does not leave pension trust behind. That is why the preferred route to achieve maximum certainty is to work with the UK Government to bring forward an order under section 104 of the Scotland Act which will apply the bill to pensions trusts. We've had positive engagement with officials at the Scotland Office and other UK Government departments and we're making progress to take on taking forward the section 104 order and we're at a really early stage of the process but I'll continue to update the committee as and when the issue develops. I know Oliver Mundell did in his contribution touch on expenses of litigation. Currently it is usually the case that trustees are personally liable to pay litigation expenses to successful opponents but have the right of relief against a trust estate. I've listened to the concerns raised in particular by the Law Society about the potential effect of these provisions and my officials met with them and stepped over the summer to hear directly from them. I'm going to look into this matter again and consider how we best might deal with the concerns raised by some of the professions. Willie Coffey raised the emotive issue regarding executors, murderous executors and I'm really committed to bringing forward reform that would prevent a person convicted of murder from being an executor to their victims of state and my officials and I will continue to explore what can be done in the context of the bill to ensure this. Now moving on to the definition of incapacity which I know several members have raised. The Bill uses a familiar definition of incapable which is very similar but it's not identical to the one that is found in the Adults with Incapacity Scotland Act 2000. The committee has rightly pointed out that there are significant and far-reaching changes recommended to the mental health legislation and I agree it would be clearly undesirable for the meaning of incapable in trust law to differ from the usual widely understood definition. I can see merit in making sure that the bill does not diverge from the general law on capacity and that it will keep pace with any changes in the area. I am considering the best approach with a view to bringing forward an amendment at stage 2 in relation to this. Presiding Officer, one very important point that was raised by Mr Kerr in his speech that I would fully endorse is the importance of making a will. Making a will is the only way to make sure your money, your property, your possessions and your investments go to the people that you really care about. I wonder if the minister might be minded to consider whether or not we could have a fundamental change in the way that properties are registered so that you would have to have a notarised will so that the disposal of the property in the event of the death of the owner would be wound up in the whole transaction. Minister. Thank you Mr Kerr for the intervention. I could be something that could consider it's not going to be considered in this specific Bill. Presiding Officer, I believe that today's debate reinforces the impression that there is a broad support for the Bill and its policy aims. This is Parliament's chance to consider an area of law which has not been looked at in any substance for over 100 years. As a whole, the Bill seeks to bring the law into line with modern practice and it takes forward all the substantive recommendations for reform proposed by the SLC. I'd like to thank all the members who have contributed to today's debate and I welcome your broad support for the general principles of the Bill. As the debate has indicated though, there are matters to consider and some differences of view on some of the points of detail. I have committed to writing to the committee ahead of stage 2 and providing further information that it has requested and I look forward to working with the committee and members from across the chamber to consider those issues in coming weeks. Thank you. Thank you. That concludes the debate on trusts and succession Scotland Bill at stage 1. It is now time to move on to the next item of business. And there is one item, one question to be put as a result of today's business. And the question is that motion 10595 in the name of Siobhan Brown on trusts and succession Scotland Bill at stage 1 be agreed. Are we all agreed? The motion is therefore agreed. That concludes decision time and I close this meeting.