This Bill is a private bill, promoted by the patrons of the Royal Incorporation of Hutchesons' Hospital in the City of Glasgow.
The Bill proposes to repeal the Hutchesons Hospital Act 1872. It would transfer the property, legal rights and obligations of the current Royal Incorporation charity to a Scottish Charitable Incorporated Organisation (SCIO) charity. It’ll be called the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow SCIO. (The ‘Royal Incorporation’ part of the title means it was given a royal charter.)
SCIOs are a more modern flexible form of organisation for charities.
The Bill will repeal (cancel) the 1872 Act because establishing the new charity means that the Act is no longer necessary.
The charity will continue to:
- help people in need in Greater Glasgow
- give bursaries to Hutchesons' Grammar School
You can find out more in the Promoter's document that explains the Bill.
Why the Bill was created
This private bill has come about because changes to the charity cannot be made without changes to the 1872 Act. Changing an Act is a time-consuming process.
The patrons believe the charity will work better if the way it is run is modernised.
This will mean:
- it’ll no longer be necessary to pass laws to change the way the charity is run
- trustees could change the constitution of the new charity if necessary
- the work of the charity will now be regulated by the Office of the Scottish Charity Regulator (OSCR)
For more on what this bill covers, go to [LINK].
You can find out more in the Promoter's document that explains the Bill.
Where do laws come from?
The Scottish Parliament can make decisions about many things like:
- agriculture and fisheries
- education and training
- health and social services
- justice and policing
- local government
- some aspects of tax and social security
These are 'devolved matters'.
Laws that are decided by the Scottish Parliament come from:
Becomes an Act
The Hutchesons' Hospital Transfer and Dissolution (Scotland) Bill passed by a vote of 100 for, 0 against, 0 abstentions. The Bill became an Act on 31 May 2019.
The promoter sends the Bill and related documents to the Parliament.
Related information from the Promoter on the Bill
Why the Bill is being proposed (Promoter's Memorandum)
Explanation of the Bill (Explanatory Notes)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Committees examine the Bill. Then MSPs vote on whether it should continue to Consideration Stage.
Committee involved in this Bill
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the committee about the Bill
First meeting transcript
Agenda item 2 is choice of convener. The Parliament has agreed that the convener of the committee should be a member of the Scottish Labour Party. As Kezia Dugdale is the only Labour member of the committee, do we agree to choose her as convener?
Kezia Dugdale was chosen as convener.
I congratulate Kezia Dugdale on her appointment and hand over the chair to her for the remainder of the proceedings.
The Convener (Kezia Dugdale)
Thank you. I also thank the officials for their preparations for today’s meeting. They have been much appreciated by all members.
30 October 2018
Second meeting transcript
Today we will take evidence from the bill’s promoters, the patrons of the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow. I formally welcome David Dobson, member of the executive committee, Hutchesons’ Hospital; Donald Reid from Mitchells Roberton Ltd, chamberlains to Hutchesons’ Hospital; and from Brodies LLP, Charles Livingstone and Alan Eccles, who are the legal advisers to Hutchesons’ Hospital.
We will be asking some questions over the next wee while but, before we do that, can you give the committee a little bit more background about what you do in relation to this bill?
Alan Eccles (Brodies LLP)
Good morning, convener. I am a partner in the charities team at Brodies, and Charles Livingstone and I have been advising Hutchesons’ Hospital on the bill process, particularly the Office of the Scottish Charity Regulator processes for setting up the new charity as recipient body for the assets that are held by the charity in its current format.
David Dobson (Hutchesons’ Hospital)
I was appointed as patron of Hutchesons’ Hospital in 2015 by the Trades House of Glasgow, and I have been a member of its executive committee since January 2017.
Donald Reid (Mitchells Roberton Ltd)
Good morning, convener and members of the committee. I am the chairman of Mitchells Roberton, which enjoys the fancy title of chamberlains to Hutchesons’ Hospital. The firm has acted in this capacity for at least 200 years but, despite appearances, I was not present at the inception of our instructions.
I have been involved in acting for the hospital since 1989. Over the years, the demands of governance and administration have steadily increased and have now become unwieldy, which is why I am pleased to be involved in seeking the streamlining that hopefully this bill will, among other things, produce.
You said that the firm has been acting for the charity for 200 years, but the legislation that we are dealing with comes from 1872.
That is right. However, if you read all the boring stuff that goes with the Hutchesons’ Hospital Act 1872, you will see that, prior to the act coming into force, Hutchesons’ Hospital had been in existence under earlier documentation, including a royal charter of 1821.
Charles Livingstone (Brodies LLP)
I, too, am a partner in Brodies, but I am part of the government regulation and competition team. With Alan Eccles, I am advising the charity on the private bill process. My particular role was to draft the bill—I have already drafted a few private bills and member’s bills—and to deal with the consultation and notification exercises.
I wonder whether David Dobson can explain to the committee why the patrons of the incorporation concluded that a change was needed. Why are we here?
To allow the patrons to become more agile in their decision making and governance with regard to the trust. I believe that there are 95 patrons of the trust; we are very lucky if we see 15 of them, but we still have the burden of having to contact all 95 in a proper fashion.
There is also a burden of checking whether the patrons have been informed of meetings and so on. Various people are appointed patrons ex officio of other posts; for example, the deacon convener of the Trades House of Glasgow is ex officio a patron of Hutchesons’ Hospital for the year that he is in post. However, a year gives you enough time to find the paper clips and not very much time to do anything effective.
Another change that will be incorporated is that we will not be naming posts. Instead, we will name bodies such as the Merchants House of Glasgow to nominate people to be patrons. We hope that that will ensure that those who become patrons are not being forced to do so but are willing to be involved in our organisation and will therefore be more active for our benefit.
That was very helpful, but the question that flows automatically from that is why now. The same arguments could have been made five or 10 years ago. What is the impetus for doing this now?
It is partly financial. The time and effort required simply to manage the extensive paperwork generated by the sheer number of people mean that the cost—which is a management cost rather than a direct cost that you can put your finger on—has in recent years become something that we need to look at. After all, the issue of cost awareness has come to the fore in all organisations.
Apart from the cost issue, it has been borne in upon the patrons and trustees that, perhaps with the passing of the Charities and Trustee Investment (Scotland) Act 2005, there is now an acute need to modernise and streamline the operation of a charity such as ours, which is not enormous but whose funds are, at the same time, not negligible. We are simply responding to what we perceive to be the expectation of best practice in the charity sector.
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
I want to challenge what I am hearing a little bit to ensure that we have a proper understanding of this. If we were dealing with a company registered under the Companies Act 1985, we would expect it to communicate with all its shareholders. That is a model that I am seeing here. Similarly, charities registered with OSCR and so on regularly communicate quite actively with the people who have joined as members
Just looking more or less at random through the 1872 act, I see this phrase:
“The Patrons shall have power, when and so long as they see fit”.
In other words, the act says directly that, under the present arrangements, the patrons—who are, as has been explained, relatively large in number—are or are able to be directly involved. Are you as a charity not in danger of losing something important by—and I just use this term to provoke you to answer—casting off this cadre of important people in your community who support what Hutchesons’ is trying to do?
I will respond initially, but others might wish to answer, too.
We are not casting off anybody. If we wanted to be over the top about this, we could say that people have voted with their feet by not attending our annual general meetings or attending to their duties. The model that we are trying to effect has been arrived at over the past several years, so we are just making the law catch up with the practice.
I therefore do not think that we will lose anything. We currently have an active group of patrons who often attend executive committee meetings, and that will be reflected in the equally active group of patrons that will be established as part of the SCIO—which, of course, will be subject to the OSCR scrutiny that you have mentioned.
We need to move on, but I just want to come back on that briefly. Does the fact that such a large proportion of the current patrons have become disconnected from the charity’s work itself not indicate that the time might be up for the charity and that arrangements other than perpetuating it should be considered?
The short answer is no. The charity’s work, particularly its work with the needy elderly people whom it supports, is by no means out of date or moribund. On the contrary, the people who are supported by it are very grateful. The flood of letters of gratitude that regularly comes in is a great encouragement to the patrons, who realise that their work is greatly appreciated by the people who benefit from it. Any body that comprises a large number of people will have drivers and passengers, and that is the case here.
I should say that I am not using the term “passengers” pejoratively—it is just that in a big group it is inevitable that there are some who will be less involved than others in the running of it. The passengers—if I can put it that way—are themselves very heavily committed individuals in their own fields from which, ex officio, they have been appointed, without their making the choice and without even their knowledge until they finally arrive. All of them cannot be expected to be as involved as the few who choose to make Hutchesons’ Hospital one of their special interests. It has been to the hospital’s great benefit that a number of these ex officio individuals have chosen to do things in that way.
There have always been a few councillors of the city of Glasgow who have taken the hospital very seriously; indeed, quite a number of our preceptors over the past 30 years have been councillors. However, this whole thing is being driven as much by the council as by the administration of Hutchesons’ Hospital, because it sees how unwieldy it is for all the councillors to be trustees. Not all of them—in fact, only a few of them—can be as focused on the hospital as ideally we would like. For those reasons, the answer to your question is no.
Thank you. I think that it was helpful to get all of that on the record, convener.
Moving on, will you tell us a bit more about the constraints that the 1872 act places on you? What might you be able to do when you become a Scottish charitable incorporated organisation that you cannot do now?
We can do less under the 1872 act. What is required by the 1872 act is being done. There is not anything that needs to be done that is not currently being done; rather, the cumbersome nature of the administration is the problem. Becoming a SCIO certainly affords—to use Mr Dobson’s word—greater agility to deal with anything that needs, in conventional terms, an adjustment of the purposes or the constitution of the charity. It will be easier under the banner of OSCR to adjust to meet needs as they develop.
Our hands are not tied behind our backs at the moment; it is just that moving is like being in a spacesuit rather than in athletic gear. However, what needs to be done gets done.11:00
That is helpful. Do you have any intention of fundamentally changing the nature of the organisation? Is this basically a tidying-up exercise?
It is a tidying-up exercise, but that is stating it too minimally. It is more than that. Governance is more than simply being tidier about the way that you go about things. It is about improving the link between the trustees and their responsibilities, so that trustees are all more positively involved in the running of the charity and the decisions that it has to make.
We could also say that there is a great degree of connection between the purposes of the SCIO in its constitution and what the 1872 act requires. The purposes are expressed in more modern terms.
What do you mean by “SCIO”?
It means Scottish charitable incorporated organisation.
Alan Eccles is probably best placed to talk about this, but the constitution of the SCIO mirrors not identically but in its essence the current purposes and activities of the charity. It is also fair to say that the current nature of the charity as a corporation established by statute does not really lend itself to modern financial management of the sort that the hospital would ideally do in managing its investments and that sort of thing. I defer to Alan Eccles on the details of that.
Will you say a bit more about that? That was wonderful lawyer speak. What do you mean about managing financial resources? Is it about borrowing or about loans?
I will defer to Alan Eccles on SCIOs.
A SCIO provides charities with a modern structure. The SCIO came in in 2011 and it is now far and away the most popular format for new charities. It gives charities and their trustees all the powers that they need to carry out their purposes. When trusts and organisations like the hospital are set up under an act of Parliament, there are certain restrictions in the structure that mean, in some cases, that they do not have the same flexibility to carry out their purposes. The SCIO structure creates flexibility that modern charities are able to take advantage of.
In addition—this is very important—this is about streamlining the governance and getting it right, and getting the best out of the organisations that have, over the years, offered up the trustees. The purposes are being slightly modernised, but they are not being changed.
I understand that, but I asked specifically about finances. Is there a specific element that will change in the financial structure?
It gives wider and more flexible investment powers. A SCIO has the power to do anything that it chooses, as long as that furthers the purposes of the charity. As currently constituted, the charity does not get the complete width of investment powers. Until the SCIO and the 2005 act, a lot of charitable organisations had restrictions on how they could best invest. In a way, that has, in some cases, put charities at a disadvantage in terms of generating a return for their purposes.
I am just going to push you a little bit further on that. The whole point of this process is to clearly evidence to Parliament why the bill is necessary. It would be helpful if we could understand very specifically what you could do as a SCIO that you currently cannot do, in the context of investment.
We could invest in anything that furthers the charity’s purposes. If an investment manager thought that it was a good idea to invest in a particular way, we could do that as long as the trustees thought that that was right for the charity. In the current format, we do not get the same flexibility and there are more restrictions on what we can do and invest in.
That is what I was looking for. Thank you.
The other side of it is changing the composition of the trustee group, which is perhaps the most important bit.
Maurice Corry (West Scotland) (Con)
Are you saying that you will be able to get, bluntly, a better return on investment under the proposals that you are considering? Will that increase the bottom line that is given out to good causes?
If there was investment advice that suggested investing in a particular way, and that was right for the charity, it could take that up as a SCIO. There are some restrictions when a charity is incorporated by an act of Parliament.
Yes, becoming a SCIO has the potential to create a better return for the charity, but perhaps the main driver is the quite unwieldy and cumbersome trustee group that exists at the moment. That is a key driver regarding the governance benefits of becoming a SCIO.
That is fine, but are we looking at changes that might lead to restrictions or openings regarding what we will call “green policies” such as those that the Church of England recently considered with regard to its investments? Is there any link to that sort of thing? Will the change avoid that?
No. In many ways it will be quite the opposite. I often think of how charities invest as being purposes led. If you are entering into the SCIO regime, where your powers are based on what is best for and what furthers your purposes, it means that you must properly take into account those ethical and social considerations and ensure that your investments tie in with your purposes.
Section 4 of the 1872 act says:
“The Patrons shall have power to apply the remainder of the revenues, and a part, not exceeding one-third of the capital, of the Hospital”
et cetera. Is that one the constraints under the 1872 act? I choose that as only one example of what will be relieved if you move to the SCIO environment.
Yes. The SCIO structure respects what there has been in the past, but it is much more permissive. Rather than putting limits on what they are doing, it enables the trustees to do things.
That is really helpful. I am sorry for the interrogation but you will understand that this is all about aiding the process, and it is what we are here to do.
I have some more questions for David Dobson and Donald Reid about the organisation’s current activities. For the purposes of the record, can you tell us a bit more about what you actually do?
We currently give grants or pensions to a group of 20 to 30 needy people in Glasgow. They also get the benefit of a social worker, whom we employ on a part-time basis and who visits all our grantees and makes sure that everything is going well with them. That is one main thrust of the purposes of the trust, and it will be maintained absolutely.
The other broad purpose of the trust is the advancement of education in Glasgow. Over the years, that has become established as being that 40 per cent of the trust’s net income goes to another charity, namely the Governors of Hutchesons’ Educational Trust. We have no intention of changing that, and that will be within the authority granted by the new SCIO, should we start operating in that way. Becoming a SCIO could also free up the trust’s remit to do other things in the education field.
The 1872 act talks about schools; in fact, it predates the arrival of what became known as Hutchesons’ Girls’ Grammar School. Prior to the 1872 act, only boys were educated. It will be a bit more than tidying up the statute book; it will remove from us the power to run schools, which we have at the moment but do not wish to use. Running schools is not in any future that any of us can envisage for Hutchesons’ Hospital.
You have made it quite clear that you do not see any of the current activities materially changing. I will push you a bit further on that. Is there any sense that anybody who is in receipt of the benefits of your organisation will lose out as a consequence of the change?
None whatsoever. Indeed, there has been communication with all the grantees to explain the situation that we are trying to advance. I think that that is recorded in the information that has been passed to the committee; I just mention it to clarify that there is no thought of there being any change.
What you are essentially doing is streamlining the organisation and making it much easier to manage. We would like to hear a bit more about how you plan to manage it appropriately, given such a material change in its operation. Who will manage that?
It is about freeing up your time, so you will have a bit less paperwork and a bit more focus on the objectives.
Yes, and bit less in fees to me, I am afraid.
I will get paid less.
I think that this is the first time that somebody has come to the Scottish Parliament and argued for less money. Tell us a bit more about that.
At the moment, the hospital charity operates with an enormous group of trustees that every year empowers an executive committee of a smaller number—approximately seven or eight—to run the show. That committee meets quarterly and makes decisions about the investments. It also hears reports on the various beneficiaries who receive grants and reports from the educational trust on how the funds that are directed to it are being deployed in its bursary fund to benefit students who would not otherwise be able to be at the school. In the case of the beneficiaries, there is a lot of quite important personal information that has to be made available so that the reports can be meaningful. There has to be very careful management of that personal data, and it is all managed in accordance with the Data Protection Act 1998, the general data protection regulation and so on.
In future, we will have a group of committed trustees who will be informed to the same extent as the current executive committee members are. However, we hope that, as they will choose to be appointed, rather than simply having trustee status imposed on them as a result of their holding a different office, the overall body of commitment and understanding will be broader and there will be a greater ability thereafter to look at innovations that might be suggested. At the moment, because of the sheer number of trustees, it is more just a case of ticking over and doing what needs to be done, because involving a much larger body and getting it to consider major decisions is much more difficult.
Thank you for that.
You mentioned the enormous number of trustees. How many are we talking about?
There are 95.
Why did that happen?
It is in the 1872 act.
They are ex officio appointments. Every elected member of Glasgow City Council is an ex officio trustee of the hospital. As has been mentioned already, part of the driver for the change is the council’s desire to rationalise the various offices to which councillors are automatically appointed, whether or not they even know about it, as Donald Reid said.
We have talked a fair bit about why a move to a different legal basis and away from 1872 act is necessary—we have talked about capital, for example. Is there anything that has not come up in the questions that we have asked so far that adds to the reasons why we need to legislate? The answer might be no; indeed, I see that it is no. That is fine. I am quite content with that, as far as it goes.
The promoter’s memorandum talks about alternatives. I have had a look at section 42 of the 2005 act, and I can see some of the issues there. However, there is also section 39 of that act, which I have in front of me and which certainly appears to provide an alternative way of reorganising. Although there are some complexities associated with the way in which it is expressed, it is clearly an alternative way that you could have proceeded. To what extent was that alternative considered, and why, if it was considered, did you dismiss it?11:15
That is not an option for a charity that is incorporated by an act of Parliament, because the charity does not have the ability to reorganise its own constitution. I am afraid that I do not have the 2005 act—
Let me take you to section 42 of the 2005 act. Section 42(3) says:
“A ‘reorganisation scheme’ is a scheme for—
(a) variation of the constitution of the charity (whether or not in relation to its purposes),
(b) transfer of the property (after satisfaction of any liabilities) to another charity (whether or not involving a change to the purposes of the other charity), or
(c) amalgamation of the charity with another charity.”
Section 42(5) says:
“Sections 39 and 40 do not apply to any charity constituted under a Royal charter or warrant or under any enactment.”
I think that that is what you are hanging your hat on. However, section 42(6) goes on to say:
“But, despite subsection (5)”—
the enactment provision—
those sections do apply to an endowment if its governing body is a charity.”
I am not a lawyer, but my reading of section 42(6) is that it appears that you would be caught by it. Although you are established by enactment, given that your governing body is de facto—if not under current legislation—a charity, you have the power to reorganise by that means. I would be interested to hear your observations on that—without getting me to the point at which I, as a layperson, become so baffled that I dissolve.
I will do my best. Section 42(5) of the 2005 act disapplies sections 39 and 40 to any charity constituted under an enactment, and there is an exception for an endowment if its governing body is a charity. The difficulty with section 42 is that the drafting reflects the way in which educational endowments are spoken about. We mentioned the Hutchesons’ Educational Trust, which is an example of where a scheme was made. There have been four or five different pieces of educational legislation under which endowments could be placed into the hands of a governing body. That legislation creates a clear distinction between the concept of an endowment and the concept of a governing body. That distinction does not exist in relation to the hospital because it is not possible to identify one thing that is an endowment and one thing that is a governing body.
It is probably impossible to explain this without getting very technical, but I can certainly say that OSCR itself also grapples with this issue. The summary of OSCR’s response to our consultation letter is noted in the promoter’s memorandum, but I will read out the relevant passage for the record:
“I note that we were previously asked to consider what options were open to the charity trustees of the incorporation to achieve the modernisation they intend, and in particular whether the reorganisation provisions of the Charities and Trustee Investment (Scotland) Act 2005 would be available to them. Our view was that in order for the incorporation of Hutchesons’ Hospital to be able to rely on the reorganisation provisions it must establish that the charity holds property that qualifies as an endowment. The drafting of section 42 of the 2005 act on this point is ambiguous and its interpretation is difficult. Indeed, we have recommended to ministers that it should be amended. Therefore, it is understandable that the charity trustees have chosen to promote the private bill and we have no particular comment on—and certainly no objection in principle to—the proposal.”
It is not necessarily the case that we can say with certainty that we fall outside, or indeed inside, section 42(6). The difficulty is that the interpretation of section 42(6) has never been tested in court, so the reorganisation of a body that relied on that provision would be vulnerable to a challenge. As advisers, we are not able to say to a charity in the hospital’s position, “You can definitely rely on that.” Although the prospect of such a reorganisation being challenged and struck down is possibly quite low, the impact of such a result would be almost impossible to deal with. That is why—with the probable exception of the educational endowments that I mentioned, which fit more neatly within the legislation—we have not been able to advise any charities established under an act of Parliament that they can use the reorganisation provisions with absolute confidence.
I find that relatively compelling. However, I have looked at the 1872 act. In essence, the source of funding is mortifications, which I understand are a particular form of testamentary provision. Do they constitute endowments to the charity in legal terms?
The property may constitute an endowment, but there is an additional difficulty in unpicking section 42(6), which says that the sections apply to an endowment if its governing body is a charity. If we are dealing with an endowment in this case, that endowment is the collection of property and assets. The 2005 act does not say that the reorganisation provisions can be applied to the governing body; it says they can be applied to the endowment. That is one of the reasons why it is, in OSCR’s words,
“ambiguous and its interpretation is difficult.”
I am going to rely on what OSCR is saying—which seems a perfectly proper place to go—and equally on the uncertainty of that option compared with the one that you are now pursuing, so that is helpful.
I have a couple of questions about the patrons, which we can probably deal with fairly briefly. We have heard that only a small proportion of the patrons actively involve themselves in Hutchesons’ Hospital. Given that the issue that we are discussing is fundamental, are you surprised that such a small number have got involved in the reorganisation?
We are no more surprised about the commitment of the totality of the trustees to the issue than about the general commitment over the years. There have always been a few who are committed and a vast majority who, for the reasons that I sought to explain earlier, do not participate to any degree.
The democracy of the decision to proceed to seek to promote the bill was fully observed in the holding of the relevant meetings, in giving notice and so on. None of the trustees had any issues to raise on its wisdom. No doubt they were guided by the fact that they knew that there was an executive committee on which they had good reason to be able to rely.
I am going to be extremely picky. Are you using the word “trustees” as a surrogate for and equivalent to “patrons”?
That is fine. I just wanted to be clear that we were not talking about something different. Did any of the people who did not attend the meeting otherwise provide any feedback?
I think I am right to say that none did.
That is fine.
You answered the question about the 95 people who have been involved under the current situation. How many organisations and people did you write to in relation to the consultation? Was it more than that number? If so, who were they?
The consultation took place in two phases. There were discussions with the various bodies that are involved in appointing patrons to the charity or whose members are ex officio patrons, so there were discussions with Glasgow City Council, Merchants House of Glasgow, Trades House of Glasgow and the Presbytery of Glasgow. The reason for the inclusion of the Presbytery of Glasgow is that ministers of various parishes, like councillors, are appointed ex officio, whether or not they want to be or know about it. There were also discussions with Hutchesons’ Educational Trust, as a significant beneficiary of the charity. Those discussions took place in the phase of developing the proposals and ensuring that people were on board with them.
At the formal stage, in the pre-introduction consultation, letters were sent to the Governors of Hutchesons’ Educational Trust. As David Dobson mentioned, everybody who is currently in receipt of a pension granted by the incorporation received a letter to advise them of the proposal. We wrote to Glasgow City Council, Merchants House, Trades House, the Presbytery of Glasgow and the Archdiocese of Glasgow, because those bodies either have people appointed to the existing trustee body or, under the SCIO constitution, have the ability—but not the obligation—to appoint trustees to the SCIO. We also wrote to OSCR.
Do you feel that you got a pretty poor response?
We received a response from Glasgow City Council, which was supportive for the reason that I mentioned: its interest in rationalising the obligations on its members. We received a response from Trades House of Glasgow, which was supportive, and a response from OSCR, which I have read out in part. There had already been discussions with the educational trust, so we did not necessarily expect a response to our formal letter.
We did not expect responses from anybody in receipt of a pension. Although the letter that was sent out invited their views, it was principally to give them comfort that, as we discussed earlier, they should not expect anything to change. Merchants House had been closely involved with the discussions as well. I think it is fair to say that the Merchants House and Trades House patrons are among the more active on the charity.
For those reasons, we did not necessarily expect more replies than we received to the letters. Donald Reid might want to say something about the earlier engagement.
I had prior discussions with the Glasgow presbytery in order to ensure that I was up to date with all the various amalgamations of churches that have taken place over the past 150 years within the Glasgow presbytery area, and that I was addressing as a patron the correct minister—who, in most cases, is now the minister of several amalgamated parishes, as distinct from the way that it was before.
The Glasgow presbytery—the office with which I was communicating—was advised of the proposal, and it indicated informally that it would approve it and would endeavour to participate in appointing relevant patrons or trustees come the day, if it happened. Given that experience, I am not surprised that the presbytery did not offer a formal response to the intimation when it was made, because it probably felt that it had already responded.
It was not a poor response. It was a good response. If a proposal meets with favour and receives no objections, that is a good response.
I understand that. I am just thinking about the sheer numbers. What attempt was made by the committee and so on to follow the matter up with those who did not reply? Mr Reid, you mentioned talking to the presbytery at length and your understanding from that. Was any attempt made to say, “We’re sorry you haven’t replied. Do you have any further objection before we finally close this?”
We had engaged with the key bodies from which we would expect engagement, based on the experience of the incorporation as to who was and was not engaged.
I add that, although they were not consultation letters because they went out to trustees rather than to external bodies, there were also letters that went out to everybody who was a trustee of the incorporation as an update, reminding them of the agreement at the previous annual meeting to pursue a private bill and telling them that we had reached the stage where we were going to introduce the bill. That was pre-introduction as well.11:30
So you categorically feel that there have been no objections at all—not even a sniff of one.
I will ask a few wrap-up questions and then offer you an opportunity to tell us anything that you think we have not covered.
I take you back to 1821, which is where we started. The explanatory notes for the bill say:
“the charity was initially built up in the 17th century by way of multiple deeds of mortification and similar deeds, some of which are written in old Scots or otherwise archaic language, and in particular the possibility that there may be still-valid documents of which the current patrons are unaware”.
I would like to know what you think the chances are of old documents turning up that might scupper your efforts.
I can speak to that because, of the three lawyers who are before you, I am undoubtedly the oldest, and in my personal experience of more than 30 years I have turned black going through tin boxes full of stuff, looking for anything that might be relevant and not finding it. This stuff is in the archives of my firm, which I note as a wee boast is the oldest in Glasgow. Some of its archives go way back, deep into the 19th century, with one or two interesting documents that I found dating from the 18th century or even earlier. There is nothing there. It is such a remote possibility that we can discount it to nil.
So there is no chance that a document will be found that might challenge the organisation’s objectives.
I do not think so, convener.
From a legal perspective, the reason why that is mentioned in the explanatory notes is to explain why the bill takes a belt-and-braces, ultra-cautious approach to capturing everything that might have a connection with the incorporation and that we would want to go across to the SCIO.
On the background, the royal charter is from 1821 and the various deeds of mortification and other legacies date back as far as 1639. It is extremely unlikely that anything will come about, but we did not want the bill to leave any prospect of a legal or ownership lacuna in respect of any property, obligation or anything like that. The explanation is given to explain why the bill is a bit more extensive and has more subsections than the legislation on other charities that were constituted under acts of Parliament and have looked to reconstitute in other forms.
It is because we are dealing with things that are so historic and came from so many sources that we do not want to allow even the possibility of something being left behind. In the event that something appears, the eventual act will take care of that and the SCIO will be the responsible body to deal with it. It will not undermine anything that the act will do. The bill is intended to protect against that eventuality.
You are saying that the bill has been drafted in such a way as to scoop up anything that might arrive and to provide a mechanism to deal with that event.
Exactly. The approach is to leave nothing behind.
Thank you. Stewart Stevenson has a supplementary question.
Section 26 of the 1872 act looks like a standard legal catch-all. I invite you to agree that the intention is basically to catch everything that went before. It mentions
“All property, heritable and moveable, real and personal, wheresoever situated at the time of passing of this act, and all conveyances, assignments”
and a long list of other things
“for the use or behoof of, or connected with the hospital, or of the before-mentioned mortifications, charities or bequests, whether the same are held absolutely or in security”.
It really is the most comprehensive of legal lists that scoops up everything, whether known about in 1872 or thereafter or not. That could be something on which we rely to catch all the things that are unknown. Is that the intention of that bit of drafting?
Yes. If the bill was not enacted and something cropped up from pre-1872, we would look to rely on section 26 of the 1872 act to confirm that it was held in the incorporation as it is currently constituted. The bill seeks to apply a similar approach now, using more modern and—we hope—more understandable drafting. We hope that we will avoid not only any issues in respect of things pre-1872, but any issue in respect of anything done between 1872 and the point at which the bill is enacted, if indeed it is.
The bill that you have brought to us does not abolish the 1872 act—or does it?
It does repeal it.
I have just looked at it very quickly and I have left my glasses somewhere else.
Section 2(1) says the transferor is dissolved and section 2(2) says that the 1872 act is repealed.
Oh, yes. It is because section 2(2) is at the top of the page that I did not see it. My apologies.
Thank you. Your evidence has been pretty comprehensive. Is there anything that you would like to put on the record that we have not given you an opportunity to say?
On behalf of the hospital, given my role in it, I thank the committee for its careful addressing of the issues and for the opportunity to respond to your questions.
Thank you very much for your evidence this morning. We wish you well.
That concludes the public part of our business today. Our next meeting will be on Wednesday 28 November.11:36 Meeting continued in private until 11:45.
7 November 2018
30 October 2018
7 November 2018
Delegated Powers and Law Reform committee
This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.
It met to discuss the Bill in public on:
(INSERT DATE AND REPEAT FOR IF MORE THAN ONE SESSION):
- read the official transcript of the meeting (LINK TO OR)
- watch a video of the meeting (LINK TO PARLIAMENT TV)
Read the Stage 1 report (ADD LINK) by the Delegated Powers and Law Reform committee published on (INSERT DATE).
Debate on the Bill
A debate for MSPs to discuss what the Bill aims to do and how it'll do it.
Preliminary Stage debate transcript
The Deputy Presiding Officer (Linda Fabiani)
The next item of business is a debate on motion S5M-15617, in the name of Kezia Dugdale, on the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill. I call Kezia Dugdale to speak to and move the motion—you have around seven minutes, please.14:47
Kezia Dugdale (Lothian) (Lab)
I am pleased to open the preliminary stage debate on the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill.
I thank my colleagues Stewart Stevenson—the deputy convener—Ruth Maguire and Maurice Corry for their work in getting the bill to this stage. I also thank the clerks and the Scottish Parliament information centre for their guidance and attention to detail throughout the process.
The bill was introduced on 25 June 2018 and is being promoted by the patrons of the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow. This is the fourth private bill to be introduced in the current session; the previous three all received royal assent. By now, we are all becoming more familiar with this specific, but necessary and important, aspect of the Parliament’s work. That is, in part, thanks to the most recent private bill to be discussed in the chamber—the Pow of Inchaffray Drainage Commission (Scotland) Bill, which gained a fair amount of attention from its observers during its passage.
So far, the work of our private bill committee has been far more straightforward, partly because no objections were lodged to the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill. As with all private bills, at the primary stage, the role of the committee has been to consider the purpose of the bill, its general principles and whether it should proceed as a private bill. If Parliament agrees, the bill will move to the consideration stage.
The Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow is a charity and is the legacy of the Hutcheson brothers, George and Thomas. The name Hutcheson remains well known—thanks, in part, to the grammar school of that name in Glasgow.
It all began in December 1639. In his will, George Hutcheson of Lambhill established the Hutchesons’ hospital charity when he left land and funding to build a hospital. In the 1600s, hospitals were places to shelter and support those in need.
Important milestones in the charity’s history appear in 1821, when the charity became the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow under a royal charter, and in 1872, when it was incorporated in its current form by the Hutchesons’ Hospital Act 1872.
The purposes of the bill that we have in front of us today are to transfer the property, rights, interests and liabilities of the royal incorporation to a successor Scottish charitable incorporated organisation—or SCIO; to dissolve the incorporation; and to repeal the Hutchesons’ Hospital Act 1872.
I feel that, before I move on to the committee’s consideration of the bill, members might benefit from some background to the incorporation. The preamble to the 1872 act provides considerable detail on how the charity developed—15 pages of pre-1872 history in all, most of which members will get from Stewart Stevenson’s speech this afternoon. Several sections cite provisions from George Hutcheson’s will, in the original Scots. We had the benefit of a comprehensive promoter’s memorandum, as one of the accompanying documents to the bill, which set out the history of the charity for us.
As I mentioned, it was George Hutcheson who donated the land in Glasgow and the funds to build a hospital on it. He also provided funds for clothes, food and lodging for, at that time,
“eleven aged and decrepit men”.
The support was for men who had been merchants, craftsmen or tradesmen who had fallen on hard times. George’s brother, Thomas, also made bequests to the charity. He provided funding for educating orphans who were the sons of burgesses of Glasgow and he established the school that became Hutchesons’ grammar school. A burgess was an inhabitant of the city who owned land, paid tax and was able to trade or practice a craft.
The original Hutchesons’ hospital building was completed in 1650 at the Trongate in Glasgow, and it was demolished in 1795. A new hospital building, which included Hutchesons’ school, was completed in 1805 on Ingram Street in Glasgow, and in 1810 the school moved into its own premises and then into a purpose-built building in 1841. The old hospital building can still be seen on Ingram Street today.
Over the years, other bequests were made to the charity and eligibility was expanded. For example, from 1781 poor women also qualified if they were residents of Glasgow and if their husbands or fathers were burgesses. Since 1885 the incorporation’s distributions for educational purposes have been paid to, and administered separately by, the governors of Hutchesons’ Educational Trust. The 1872 act still regulates the management of the charity and its revenues today, which brings us back to the objectives and purposes of the bill.
The bill’s promoter, the patrons—or trustees—of the charity, have decided that change is needed to allow more modern governance of the incorporation’s assets and to enable the charity to function more efficiently and effectively. They believe that a private bill is the best route to achieving that.
We heard from the promoter at our committee meeting on 7 November 2018, when we asked what the 1872 act prevented the charity from doing today. Mr Donald Reid of Mitchells Roberton, the firm of solicitors that supports the charity in its role as “chamberlains” to Hutchesons’ hospital, explained:
“Our hands are not tied behind our backs at the moment; it is just that moving is like being in a spacesuit rather than in athletic gear. However, what needs to be done gets done.”—[Official Report, Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill Committee, 7 November 2018; c 5.]
The patrons have already set up the new SCIO, ready for the transfer. The SCIO is a modern, flexible form of organisation for charities that is provided for by the Charities and Trustee Investment (Scotland) Act 2005 and regulated by the Office of the Scottish Charity Regulator.
The committee considered the purpose of the bill and the arguments presented in favour of enabling an updated governance structure and more modern financial management of the charity. We also considered the potential impact of the changes on the nature of the charity, its work and its beneficiaries, and whether a private bill was necessary to achieve the charity’s aims.
Our report sets out our considerations, and my committee colleagues will provide some more detail on them later in the debate. The committee supports the general principles of the bill. Overall, we believe that it will help to ensure that the charity can modernise, streamline, improve its governance, remain effective and continue to provide support to its beneficiaries.
That the Parliament agrees to the general principles of the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill and that the bill should proceed as a private bill.14:54
Maurice Corry (West Scotland) (Con)
I, too, thank the clerks and my colleagues for the progress of the bill to this stage, and I thank the convener, Kezia Dugdale, for moving the motion. As she mentioned, one of the reasons for promoting the bill is to enable the promoter to update the governance of the incorporation. Based on the 1872 act, which still governs it today, the governing body consists of 95 patrons. Many of those are ex officio, meaning that the individuals are there because of the post or office that they hold; they are not there through choice.
An example of that is that all the councillors on Glasgow City Council are still patrons because they were named as such in the 1872 act. The promoter underlined that, although there is a committed and active group of patrons, not surprisingly, there are also many who are not actively involved. The day-to-day running of the incorporation is carried out by an executive committee, but the 95 patrons still constitute the governing body, which means that they must be properly contacted and consulted. In the course of our evidence taking, the promoter explained that there are costs associated with that.
The promoter seeks to streamline and modernise how the charity operates, to make it more agile in how it can take decisions and, as the promoter explained, to respond to expectations of best practice in the charity sector. Such modernisation would include moving towards a model in which bodies would be named, which would then nominate people as trustees. The committee feels that a more direct and transparent link to a group of committed trustees would benefit the charity, because they would be in their roles through choice. Such a move would streamline activities and, ultimately, improve management and oversight. The promoter also believes that modernisation is needed to enable it to use the assets of the charity to their best effect. In evidence to the committee, it explained that, as currently constituted, the charity faces certain restrictions and has less flexibility in what it can do than would be the case for a Scottish charitable incorporated organisation.
As well as considering the arguments that were given by the promoter in favour of modernising the governance and financial management of the charity, the committee heard about the charity’s intentions for the future. It provided its first pensions, or grants, to two men in 1643. In evidence from the promoter, the committee heard that the charity today provides grants to a group of between 20 and 30 people in Glasgow. It also employs a part-time social worker who visits those who receive such grants. David Dobson, who is on the charity’s executive committee, described that work as
“one main thrust of the purposes of the trust, and it will be maintained absolutely”.
He went on to state:
“The other broad purpose of the trust is the advancement of education in Glasgow. Over the years, that has become established as being that 40 per cent of the trust’s net income goes to another charity, namely the Governors of Hutchesons’ Educational Trust. We have no intention of changing that, and that will be within the authority granted by the new SCIO, should we start operating in that way.”—[Official Report, Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill Committee, 7 November 2018; c 8.]
The promoter also confirmed that none of the current beneficiaries would lose out as a consequence of the change.
I hope that I have provided members with useful detail on our considerations and some context as to why—as the convener mentioned in her opening speech—the committee has concluded that it is content with the general principles of the bill as they were presented to us.
The Deputy Presiding Officer
I call Stewart Stevenson to close the debate.14:57
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
The primary task of the committee was to consider whether the bill is a private one. We have thought about that and have looked at the definition that is in the Parliament’s standing orders, and we have concluded that it is. In doing so, the committee is merely following the long history to which Kezia Dugdale referred, from 1639 via the 1872 act, which, although it was not technically based on a private bill, clearly served private purposes. As the bill that is before the Parliament today is a private one, it is part of the continuum of support that has been given to people in Glasgow.
The promoter had considered whether it could use alternative ways of dealing with the issue that confronted it, such as the charity reorganisation provisions that are set out in chapter 5 of the Charities and Trustee Investment (Scotland) Act 2005, which are available to charities in certain defined circumstances. However, there appeared to be a lack of clarity as to whether the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow would meet the criteria for applying those provisions.
To test that, the committee sought advice from an academic and a Queen’s counsel, which is set out in considerable detail in the committee’s report. The advice is more fascinating than might be imagined, and I encourage all members to read it. However, the bottom line is that it drew the committee towards the conclusion to which the promoter of the bill had come, which is that it could not reliably use the provisions of the 2005 act without the prospect of legal challenge. Therefore, instead, it has pursued the private bill that is before us today.
The consequences of a legal challenge, were one to arise, could be both financially and practically quite challenging, so I think that the safe option that they have adopted, which the committee is happy to endorse, is to bring forward a private bill.
Of course, that leads to an issue for the Scottish Government, which we deal with in our report. It is that the legislation that I mentioned—the 2005 act—should perhaps be revisited to see whether we can provide greater clarity.
Having said that, the Scottish Government has published in the past month a consultation on Scottish charity law with a view to possible update of the 2005 act, and it includes a question that relates to the matter that I have just been referring to. Preparation of the consultation would have been well advanced but, nonetheless, the Hutchesons’ committee was quite right to bring the bill forward in early course.
The other option was that it could have hobbled on with the 1872 legislation and the 95 largely indifferent people who were on the committee. There was some suggestion that many of them were not even aware that they were on the committee, including as it does all of Glasgow’s councillors and many ministers of religion who, simply because of their office, end up legally and formally being on the committee.
We came to the conclusion that doing nothing did not make sense, because the trustees made a pretty cogent argument that we should look at updating and modernising the 1872 arrangements and bringing them into the world that we now have, with the oversight of OSCR and an SCIO. Having considered the alternatives, we are content with the promoter’s conclusion that a private bill is most appropriate and best available method of achieving the aims.
We are left with one question alone, which is how we will adjudge the success of the parliamentary process. I think the key test is that the beneficiaries of the trust see no difference whatsoever and it continues to provide the support that they have enjoyed for some time. The support was described in the 1872 act, which was based on the mortification of George Hutcheson of 1639. It says:
“aiget, decrippet men may be enterit and placet yrin”.
I am “aiget” but hopefully not “decrippet”, but I was particularly excited by the provision that there be
“foure shillingis Scottis money”
every day, and every year
“ane gowne of convenient cullor”.
Before we get too excited, I note that, although four shillings sounds a lot of money, in today’s money, because it was Scots pounds and not English pounds and because of decimalisation, that would be tuppence. I know that the beneficiaries get a little bit more than that today. The parliamentary process should, and I believe will, enable them to continue to receive the benefits in proper legal form.
The Deputy Presiding Officer
That concludes the debate on the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill.
20 February 2019
Vote at Preliminary Stage
Vote at Preliminary Stage transcript
The Presiding Officer (Ken Macintosh)
The first question is, that motion S5M-15617, in the name of Kezia Dugdale, on the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill, be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill and that the bill should proceed as a private bill.
The Presiding Officer
The next question is, that motion S5M-15892, in the name of Kevin Stewart, on the Fuel Poverty (Target, Definition and Strategy) (Scotland) Bill, be agreed to.
Motion agreed to,
That the Parliament agrees to the general principles of the Fuel Poverty (Target, Definition and Strategy) (Scotland) Bill.
The Presiding Officer
The final question is, that motion S5M-15900, in the name of Graeme Dey, on the draft Local Government Finance (Scotland) Order 2019, be agreed to.
Motion agreed to,
That the Parliament agrees that the Local Government Finance (Scotland) Order 2019 [draft] be considered by the Parliament.
20 February 2019
Consideration Stage - Changes to detail
Members of the Private Bill Committee can propose changes to the Bill. Objections and changes are considered and then decided on by the committee.
Changes to the Bill
MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.
The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.
The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.
How is it decided whether the changes go into the Bill?
When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.
The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.
Depending on the number of amendments, this can be done during one or more meetings.
First meeting at Consideration Stage
First meeting at Consideration Stage transcript
The Convener (Kezia Dugdale)
Good morning and welcome to the first meeting in 2019 of the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill Committee. I remind all present, including members, that mobile phones should be turned to silent.
Agenda item 1 is consideration stage of the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill. Normally, at this stage, there is consideration of objections, followed by formal proceedings on amendments. However, in this instance, no objections or amendments have been lodged, so the only function of this stage is to formally consider and agree the bill’s individual provisions.
Although we have no amendments to deal with, we are obliged under standing orders to consider and formally agree each section and the long title of the bill. We will take the sections in order and the long title last, but standing orders allow us to put a single question where groups of sections are to be considered consecutively. Unless members disagree, that is what I propose to do. Is the committee content with that approach?
Members indicated agreement.
Sections 1 to 5 agreed to.
Long title agreed to.
That ends consideration stage. Now that the committee has completed its consideration of the bill, this is likely to be our final meeting, and the bill will now proceed to the final stage, which will take place in the chamber.
I thank the promoters and the members for their assistance with and work on the bill to date, and I close the meeting.Meeting closed at 10:31.
6 March 2019
Final Stage - Final amendments and vote
MSPs can propose amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law
Final debate on the Bill
Once they've debated the amendments, the MSPs discuss the final version of the Bill.
Final debate transcript
The Deputy Presiding Officer (Christine Grahame)
The next item of business is a debate on motion S5M-16708, in the name of Kezia Dugdale, on the final stage of the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill.
Before the debate begins, the Presiding Officer is required under the standing orders to decide whether, in his view, any provision of the bill relates to a protected subject matter—whether any provision will modify the electoral system and franchise for Scottish parliamentary elections. In this case, the Presiding Officer’s view is that no provision of the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill relates to a protected subject matter. Therefore, the bill does not require a supermajority for it to be passed at the final stage.15:23
Kezia Dugdale (Lothian) (Lab)
I am pleased to open the final stage debate on the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill.
I again thank my committee colleagues: the redoubtable Stewart Stevenson, as deputy convener, Ruth Maguire and Maurice Corry for their contributions to the work of the committee. I also thank the clerks for their tremendous work in guiding us through the process.
The bill was introduced on 25 June 2018 and is being promoted by the patrons of the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow.
If the Parliament passes the bill today, it will enable the promoter to transfer the property, rights, interests and liabilities of the royal incorporation to a successor Scottish charitable incorporated organisation—SCIO. It will also dissolve the incorporation and repeal the Hutchesons’ Hospital Act 1872.
As members will recall from the preliminary stage debate, in February, the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow is a charity and is the legacy of George and Thomas Hutcheson. It started with a bequest that was made in the will of George Hutcheson in 1639, and the establishment of the Hutchesons’ hospital charity. The charity became the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow under a royal charter in 1821. In 1872, it was incorporated in its current form by the Hutchesons’ Hospital Act 1872, and it continues to be regulated under that act. With this bill, the promoter aims to allow more modern governance of the incorporation’s assets and enable the charity to function more efficiently and effectively.
Elaine Smith (Central Scotland) (Lab)
I understand that, in her role as convener of the committee, Kezia Dugdale cannot comment directly on this, but I am keen to have it noted for the record that, although this is a private bill that focuses on technical issues and will, no doubt, be supported at decision time, it is nonetheless important to recognise that private schools ingrain privilege and should not themselves be classed as charitable institutions.
I am grateful to the member for that intervention. In this debate, I speak as the committee convener on the specifics of the bill, but she will know that I share her concerns regarding the tax liabilities of private schools. That is an issue on which I have personally campaigned for a long time. The bill regulates the bursaries that the charity has—or certainly had in the past—that allow certain young people to attend private schools, so there is a relevance in that regard.
The committee undertook a thorough examination of the bill at the preliminary stage, including taking evidence from the promoter on 7 November last year. In addition to evidence from the promoter, we received written submissions from two experts in the field—an academic and a Queen’s counsel—and our thanks go to them for their contribution to the committee’s work.
We considered the purpose of the bill and the arguments that were presented in favour of enabling an updated governance structure and more modern financial management of the charity. We also considered the potential impact of the changes on the nature of the charity, its work and its beneficiaries and whether a private bill was necessary to achieve the charity’s aims.
Our preliminary stage report, which was published on 20 December, covers our work in some detail. In our discussions and deliberations, perhaps the most considered point was whether a private bill was necessary at all and whether the promoter had alternative options to achieve the charity’s aims.
In the bill’s accompanying documents and in evidence to the committee, the promoter explained the alternatives to promoting a private bill that it had considered. Its process uncovered an apparent lack of clarity in the Charities and Trustee Investment (Scotland) Act 2005 related to chapter 5 of part 1, which sets out provisions on charity reorganisation. The issue was whether the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow meets the criteria that would enable it to make use of those provisions. It has been suggested that the reorganisation provisions present difficulties of interpretation. Indeed, the promoter concluded that it did not wish to risk the potentially serious consequences of any legal challenge and chose the private bill route instead. As a result, the committee suggested that it could be a valuable exercise for the Scottish Government to review the provisions, to provide greater clarity on them.
In fact, the Scottish Government consulted on Scottish charity law in January this year—a process that would have been under way before publication of our report. However, we hope that our work on the bill provided some timely reflections for the Government.
I imagine that a considerable number of charities that are still operating on the basis of royal charters or enactments might find themselves in a similar situation. In cases in which it could prove possible to avoid the time and expense of promoting a private bill, I suspect that an alternative route must be preferable.
The committee was satisfied that the promoter had considered alternatives and was content with its conclusion that a private bill was the most appropriate and best available method of achieving its aims.
My committee colleagues will touch on other aspects of our work on the bill. I will conclude by stating that the committee recommends that the Scottish Parliament agrees that the bill be passed.
That the Parliament agrees that the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill be passed.15:28
Ruth Maguire (Cunninghame South) (SNP)
Being a member of this private bill committee has given me an insight into an important but lesser-known aspect of parliamentary work.
The bill was previously debated at preliminary stage in the chamber on 20 February, and the Parliament agreed with the committee’s recommendation that the general principles be agreed to and that the bill should proceed as a private bill. In the private bill process, the preliminary stage is followed by the consideration stage, when committee members are able to lodge amendments. It is also possible for the promoter of the bill to suggest amendments to committee members.
When there have been objections, the committee takes evidence from the objectors and the promoter at the consideration stage. In our case, there were no objections to the bill and nothing arose during the preliminary stage scrutiny of it that led us to conclude that any amendments were necessary.
The consideration stage was completed at our meeting on 6 March, when we agreed to each section of the bill and the long title. When the consideration stage of a private bill is completed, it is then open to any member of the Scottish Parliament to lodge amendments. The deadline for amendments in this case was 29 March. None were received, so today we are proceeding with the final stage debate, with the committee recommendation that the Parliament agree to the bill as it stands.
Membership of the committee also gave me an opportunity to learn about the history of the Hutchesons’ Hospital charity, how it has developed over the years and the work that it does today. George Hutcheson of Lambhill established the charity when he left land and funding in his will to build a hospital. The charity focused initially on men who had been merchants, craftsmen or tradesmen and who had fallen on hard times. George Hutcheson also provided funds for clothes and food for those lodging in the hospital.
Further bequests were made over the years, and the categories of people who were eligible to receive assistance were expanded. For example, from 1781, poor women who were wives or daughters of burgesses of Glasgow became eligible to receive support from the charity’s funds, regardless of whether they were widowed. Burgesses were inhabitants of the city who owned land, paid taxes and were able to trade or practise a craft.
Thomas Hutcheson, George’s brother, also made bequests to the charity. He provided funding to educate boys who were orphans of burgesses of Glasgow. He also established the school that became Hutchesons’ grammar school.
The original hospital building, which was completed in 1650 at the Trongate in Glasgow, was demolished in 1795 and the land was sold to make way for Hutchesons’ Street. The new hospital building was constructed on Ingram Street and was finished in 1805. Although it now serves a different purpose, it can still be found on Ingram Street. George and Thomas can also be found there. The sculptures of the brothers from the original 17th century hospital were preserved and incorporated into the façade of the new building. I understand that they are believed to be the oldest portrait sculptures in the city. The legacy of the Hutcheson brothers clearly lives on in the city and in the work of the charity today.
The bill, which is promoted by the patrons of the charity, aims to make the charity fit to function effectively into the future.
The Deputy Presiding Officer
I call Maurice Corry to speak. You were quick to get to your feet, Mr Corry—that shows enthusiasm.15:32
Maurice Corry (West Scotland) (Con)
I thank the clerks for all their work during the bill process, which has been most interesting. They have put in a tremendous amount of effort.
As we have heard, it is the 1872 act, which the bill will repeal, that still governs the functioning of the charity today. The 1872 act is a fascinating document the preamble to which requires a fair grasp of old Scots to fully comprehend. Preambles used to be commonplace in acts of Parliament. They typically provide a preliminary piece of narrative explaining the background to an act and usually take the form of one single extended sentence, with each clause beginning with “Whereas”. They remain normal practice for Westminster private acts but are no longer used in public and general acts. Preambles are not permitted in Scottish Parliament bills or acts, private or public. The preamble to the 1872 act is remarkable for its length: running to 15 pages, it is nearly double the length of the act itself.
The bill that we are considering today, which is promoted by the patrons of the charity, will transfer the property, rights, interests and liabilities of the royal incorporation to a new Scottish charitable incorporated organisation. It will also repeal the 1872 act and dissolve the incorporation.
One example of the modernisation that the patrons hope to achieve with the new structure relates to the governance of the charity. The 1872 act sets out in full who the patrons of the hospital are—including the Lord Provost, all the magistrates of the City of Glasgow and all the councillors of the City of Glasgow. Currently, there are 95 patrons in total, many of whom hold ex officio positions, meaning that they are patrons due to the post or office that they hold. Some of those posts are held for only one year at a time. As a result, many of the patrons are not there through choice, and some remain in the role for only one year.
In evidence, we heard that the charity has a group of committed patrons. However, perhaps unsurprisingly, many of the 95 that I have mentioned are not actively involved. Nevertheless, each must be properly contacted and consulted. Mr Donald Reid of Mitchells Roberton—the solicitors firm that is supporting the charity as “chamberlains” to Hutchesons’ Hospital—explained:
“The time and effort required simply to manage the extensive paperwork generated by the sheer number of people mean that the cost—which is a management cost rather than a direct cost that you can put your finger on—has in recent years become something that we need to look at.”—[Official Report, Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill Committee, 7 November 2018; c 7.]
The work that is involved was further illustrated when the committee heard evidence about how the promoter had consulted before introducing the bill. The 1872 act stipulates a list of ministers of parishes in Glasgow as patrons. Mr Reid explained that he had been in contact with the Glasgow presbytery
“in order to ensure that I was up to date with all the various amalgamations of churches that have taken place over the past 150 years within the Glasgow presbytery area, and that I was addressing as a patron the correct minister—who, in most cases, is now the minister of several amalgamated parishes, as distinct from the way that it was before.”—[Official Report, Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill Committee, 7 November 2018; c 14.]
Mr Reid valiantly admitted that the planned changes would also mean lower fees to him in his role, as a result of the more streamlined structure and governance.
The committee’s view was that the charity will benefit from a more direct and transparent link to a group of committed trustees who are in the role through choice. That will help to streamline activities and, ultimately, improve management and oversight. The bill that is being promoted by the patrons of the Royal Incorporation of Hutchesons’ Hospital in the City of Glasgow, which the Parliament is being asked to pass today, should facilitate that change.
The Deputy Presiding Officer
I call Stewart Stevenson to close for the committee.15:36
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
As we have heard, George Hutcheson’s deed of mortification of 1639 is the genesis of what we are engaging with today. The charity’s history is long and interesting. In her intervention, Elaine Smith was right to point out the educational aspect, but it is worth saying that nothing that we will do today appears to change the status of anything in that regard.
The charity provides grants, which it describes as pensions, to 20 to 30 people, so its size is comparatively modest. That means that having a complex and long parliamentary act for its oversight is no longer consistent with how we wish to do things. The promoter explained to the committee that the charity employs a part-time social worker, who visits the grantees.
The committee looked carefully at what was proposed. In particular, we looked at any impacts on those who receive support, and we accepted the promoter’s assurance that no one who currently receives benefits will lose out as a result of the proposed changes.
The promoter’s memorandum says:
“The charitable purposes of the SCIO”—
the new form that the charity will take—
“seek to respect the spirit and underlying intention of the Incorporation’s purposes, but in a manner that more satisfactorily and effectively allows the charitable funds held by the Incorporation to be applied in the 21st century.”
The SCIO that will take over has been established and is waiting to take responsibility. That is a modern form of organisation for charities that was provided for by the Charities and Trustee Investment (Scotland) Act 2005 and is regulated by the Office of the Scottish Charity Regulator. The structure will be more effective and will remove the need for parliamentary scrutiny of the charity’s activities.
In our evidence session, the committee heard that the charity will have greater flexibility in how it carries out its purposes—for example, in how it invests. As a SCIO, the charity will be able to invest in anything that furthers its purposes, provided that the trustees believe that that is right for the charity.
The committee thought that the proposed approach would make the whole operation much more future proof. Other members have referred to the complexity of multiple deeds of mortification and similar deeds, almost all of which are in old Scots—perhaps we should relearn the old Scots. The documents include a deed of ratification by Janet, Bessie and Helen Hutcheson; deeds of mortification by James Blair in 1713 and Daniel Baxter in 1776; and settlements by William Scott in 1818 and Mary Hood in 1817. There is a complex picture and history behind the charity.
Mr Donald Reid, whose firm has acted as chamberlains to the charity for some 200 years, explained that he had gone through all the tin boxes that they have and found nothing further that is relevant. It is worth saying that this opportunity that a lawyer has presented to the Parliament is unusual—at his request, we are going to reduce that lawyer’s income. I therefore commend the bill as something that the Parliament should absolutely support. In the event that something arises that is not in the tin boxes, the SCIO will be the body that will deal with it.
Like others, I thank my colleagues on the committee and, in particular, the non-Government bills unit, which has, as promised, smoothed the path and made it straightforward for the committee to deal with the bill. I hope that the vote at 5 o’clock reflects the Parliament’s belief that that is the case.
25 April 2019
Final vote on the Bill
After the final discussion of the Bill, MSPs vote on whether they think it should become law.
Final vote transcript
The Presiding Officer (Ken Macintosh)
The first question is, that motion SM5-16708, in the name of Kezia Dugdale, on the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill, be agreed to. The motion is to pass the bill, so we will hold a division. Members should cast their votes now.
Mason, Tom (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Bowman, Bill (North East Scotland) (Con)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Harris, Alison (Central Scotland) (Con)
Simpson, Graham (Central Scotland) (Con)
Lennon, Monica (Central Scotland) (Lab)
Whittle, Brian (South Scotland) (Con)
Smyth, Colin (South Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Chapman, Peter (North East Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Greer, Ross (West Scotland) (Green)
Corry, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Tomkins, Adam (Glasgow) (Con)
Swinney, John (Perthshire North) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Scott, Tavish (Shetland Islands) (LD)
Scott, John (Ayr) (Con)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Mundell, Oliver (Dumfriesshire) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lamont, Johann (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Griffin, Mark (Central Scotland) (Lab)
Gray, Iain (East Lothian) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Campbell, Aileen (Clydesdale) (SNP)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Balfour, Jeremy (Lothian) (Con)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)
Crawford, Bruce (Stirling) (SNP)
The Presiding Officer
The result of the division is: For 100, Against 0, Abstentions 0.
Motion agreed to,
That the Parliament agrees that the Hutchesons’ Hospital Transfer and Dissolution (Scotland) Bill be passed.
The Presiding Officer
The next question is, that amendment S5M-17034.2, in the name of Brian Whittle, which seeks to amend motion S5M-17034, in the name of Joe FitzPatrick, on changing lives through sport and physical activity, be agreed to.
Amendment agreed to.
The Presiding Officer
The next question is, that amendment S5M-17034.1, in the name of David Stewart, which seeks to amend motion S5M-17034, in the name of Joe FitzPatrick, be agreed to.
Amendment agreed to.
The Presiding Officer
The final question is, that motion S5M-17034, in the name of Joe FitzPatrick, on changing lives through sport and physical activity, as amended, be agreed to.
Motion, as amended, agreed to.
That the Parliament recognises that sport and physical activity can bring about positive change beyond participation that benefits the health and wellbeing of individuals and improve their skills and learning; acknowledges that it makes communities better connected and more socially cohesive, ensuring a more inclusive and healthier nation; recognises that this can be achieved by sporting and non-sporting organisations working together to use sport and physical activity to intentionally bring about both increased participation and wider social outcomes; recognises that sport should be available to all, irrespective of background or personal circumstances; considers that sport in school and in extracurricular activities is the best way to ensure access for all; believes that physical education should reflect the sporting opportunities in local communities and local clubs; considers that investment in sport should reflect the positive impact that it can have in the health of the nation and attainment in Scotland’s schools; notes with concern the deprivation gap in levels of physical activity and considers that, regardless of background or ability to pay, physical activities should be accessible for all; appreciates the importance of appropriate physical activity for recovery following illness or injury, and believes that the Scottish Government should work to address the gap in provision of community-based exercise initiatives such as pulmonary rehabilitation.Meeting closed at 17:02.
25 April 2019