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Trusts and Succession (Scotland) Bill: business and regulatory impact assessment

This business and regulatory impact assessment (BRIA) considers the impact of the Trusts and Succession (Scotland) Bill.


Consultation

Consultation was carried out in accordance with the SLC's established practice in conducting law reform projects.

Within Government

The SLC have kept its sponsor department, the Private Law Unit, abreast of developments and the trust project formed part of Eighth Programme of Law Reform.

Public consultation

The SLC first examined, jointly with the Law Commission for England and Wales, trustees' powers of investment in the late 19902. This resulted in a Joint Report, Trustees' Powers and Duties (LC No 260; SLC No 172, 1999). Thereafter, the SLC has issued eight further Discussion Papers. They are as follows:

  • Breach of Trust (DP No 123, 2003)
  • Apportionment of Trust Receipts (DP No 124, 2003)
  • Trustees and Trust Administration (DP No 126, 2004)
  • Variation and Termination of Trusts (DP No 129, 2005)
  • Nature and Constitution of Trusts (DP No 133, 2006)
  • Liability of Trustees to Third Parties (DP No 138, 2008)
  • Accumulation of Income and Lifetime of Private Trusts (DP No 142, 2010)
  • Supplementary and Miscellaneous Issues relating to Trust Law (DP No 148, 2011)

In addition, two Consultation Papers have been published:

  • Defects in the Exercise of Fiduciary Powers (2011)
  • Public and Charitable Trusts: Amalgamation of Functions and Common Investment Funds (2012)

Alongside, one Report:

  • Variation and Termination of Trusts (SLC No 206, 2007)

Responses have been overwhelmingly in favour of reform of Scots trust law.

In May of 2014, the SLC consulted with six stakeholders in preparation of its BRIA. Responses were unanimously positive; there remains a substantial appetite for reform.

Regarding succession, the SLC published a Discussion Paper on Succession (SLC No 136) in August 2007[18] and a Report on Succession in 2009 (SLC No 215).[19] The Scottish Government subsequently consulted on succession law in 2015.[20]

Business

From the outset of the project, the SLC benefited greatly from the comments and advice offered to them by those with whom they met to discuss matters.

In producing the Discussion Papers and Reports outlined above, it engaged with relevant practitioners in both the legal and investment sectors, academics, and judges.

In December 2011, the SLC conducted meetings with Standard Life PLC and Alliance Trust PLC in order to discuss a variety of its proposals. Each practitioner with whom it spoke offered advice on the practical issues affected by the Bill, whilst stressing that the enactment of the Bill would be highly beneficial in terms of modernising the law and opening up Scotland to further investment.

In September 2011, Sir Grant Hammond, then President of the New Zealand Law Commission, visited the Scottish Law Commission. This provided an invaluable opportunity to discuss the project and developments in the parallel project being undertaken by the New Zealand Law Commission. The SLC also received assistance from Jersey in 2011; both the Jersey Trust Law Committee and Julian Clyde-Smith, a Commissioner of the Royal Court of Jersey, were particularly generous in meeting with the then Chairman of the SLC, Lord Drummond Young, to discuss issues of trust law and its reform in contemporary conditions.

The SLC have also had frequent contact by email and, in some cases, telephone with practitioners and academics throughout the lifetime of the project.

Contact

Email: michael.paparakis@gov.scot

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