Official Report 1076KB pdf
The next item of business is a debate on motion S6M-14485, in the name of Siobhian Brown, on the Judicial Factors (Scotland) Bill at stage 1. I invite members who wish to participate in the debate to press their request-to-speak buttons now or as soon as possible.
15:36
The Scottish Law Commission does the important job of consulting on, and making recommendations to simplify and improve, our law. I am committed to introducing bills to implement its proposals, and the Judicial Factors (Scotland) Bill, which we are debating today, is one of the SLC’s bills. It is the third SLC bill to be introduced by the Government this session, and members will know that the recent programme for government included a commitment to bring forward a fourth SLC bill, on the termination of commercial leases.
A judicial factor
“is a person appointed by the court to gather, hold, safeguard and administer property which is not being properly managed.”
Examples of the use of judicial factors include where there has been a breach of the Law Society of Scotland’s accounting rules by a solicitor firm that is, or appears likely to be, insolvent, and when there is no executor who is willing to carry out the administration of a deceased person’s estate. If passed, the bill will put in place an updated and comprehensive framework that will bring clarity, accessibility and efficiency to this vital area of law.
A judicial factor is generally an appointment of last resort that is made when all other avenues have failed. Currently, there are around 50 judicial factors who have been appointed to manage someone else’s property. There are, on average, fewer than 10 court applications a year for such appointments.
The bill proposes to make important and practical changes for all those who are involved with judicial factors in one way or another. The appointment of judicial factors to manage the property of missing persons is an area that came in for close scrutiny by the Delegated Powers and Law Reform Committee, for which I am grateful. Such appointments have been made in the past, although rarely, yet in Scotland 15 people each year are declared to be long-term missing, and the current total is just over 700 people.
There will be a number of reasons, individual to each of those cases, why an application for the appointment of a judicial factor is not made. One of those reasons might be the difficulty in doing so that is caused by an outdated and complex law. The bill aims to bring the relevant law together in one place to make it easier for users of the legislation.
When I gave evidence to the committee earlier this year, I made a commitment to work with the charity Missing People to help to produce guidance. That will help the families of those who have gone missing to know how to deal with their estate, which might include things such as paying the mortgage, managing joint bank accounts or looking after dependants. I reiterate that commitment today.
In its report, the committee suggested a number of points that should be covered in guidance, and I will make sure that those are included.
An important issue that came out in evidence, and on which the committee commented, was ensuring that
“it is competent to appoint a judicial factor to the estate of a missing person.”
Section 3 of the bill is deliberately widely drafted and already allows a judicial factor to be appointed to the estate of a missing person. Appointments of a judicial factor to the estate of a missing person are rare but they have been made in the past; the bill will not change the legal position. However, I have listened to the views that were expressed, and alongside the guidance that we will prepare, we will expand on the detail in the explanatory notes to make clear that a judicial factor can be appointed to manage the estate of a missing person.
The committee was quite explicit about the requirement that it felt should go in the bill. I understand the commitment from the Government both to the guidance and in relation to the explanatory notes, which courts could rely on as evidence of the intention of the bill. Could the minister explain—perhaps more clearly, if I may put it that way—why a simple endorsement in the bill to give satisfaction to families of people who are missing is proving such a challenge?
I will give you time back, minister.
Such an amendment, in my view, is not only unnecessary but could risk undermining the wider policy regarding the circumstances in which the judicial factor may be appointed. As I said, section 3 is deliberately widely drafted and already allows for a judicial factor to be appointed to the estate of a missing person. Amendments that specifically relate to missing people could cast doubt on the generality of section 3 and prevent the appointment of a judicial factor in other circumstances.
The committee raised a number of other matters in its stage 1 report, some of which I want to discuss. First, it might be necessary for a factor to seek information from others, such as banks and other financial institutions, about the property that is being managed. Section 12 confers a power on judicial factors “to require information”, including provisions on data protection that the committee and a number of stakeholders have questioned. Making it clear that data protection legislation is not overridden is not unusual in bills and can be useful in providing clarity. However, I have listened carefully and will lodge amendments to address the issues that were raised.
At present, the appointments of only some judicial factors are publicised. Publication increases creditor protection and helps to reduce the risk of a third party unknowingly purchasing property in respect of which a judicial factor has been appointed. The bill provides that every appointment of a judicial factor must be recorded in the register of inhibitions, which is a searchable database that the Registers of Scotland oversees.
Those who gave evidence were of the general view that publication of appointments is desirable but questioned whether a new bespoke register was needed. The committee recommended that the bill should be “flexible enough” to allow for a change in the register if circumstances warrant that. I welcome the committee’s recognition of the importance of registration and will lodge an amendment at stage 2 that gives effect to its recommendation.
I will also speak with the Registers of Scotland and the Law Society of Scotland to consider what can be done to raise awareness of the use of the register in relation to judicial factories, so that people know that property is being managed by a judicial factor.
Separately, some stakeholders and the committee raised the need to make clear in the bill the fiduciary character of a judicial factor’s role. Reading the bill as a whole, I think that it is clear that the nature of the judicial factor’s role is fiduciary, although that term is not used. The bill requires judicial factors
“to hold, manage, administer and protect the factory estate for the benefit of persons with an interest in the estate ... to exercise care, prudence and diligence”
and to
“take professional advice when appropriate.”
However, I think that something can be added to the explanatory notes to make that point clearer to users of the legislation.
Finally, the Accountant of Court, who supervises the work of judicial factors, is appointed and employed by the Scottish Courts and Tribunals Service. The bill sets out that the accountant should be
“appropriately qualified or experienced in law and accounting.”
There is no requirement that the accountant be formally qualified in both disciplines or in either; that is a restatement of the current legal position. It is for the Scottish Courts and Tribunals Service to determine whether the person appointed is the best fit for the role. With an eye to the flexibility of the legislation, the Delegated Powers and Law Reform Committee considered that it would be beneficial for the accountant’s qualifications to be made subject to review and amendment by regulation, if necessary. The committee made recommendations to that effect. I recognise the flexibility that that brings to the bill, and I will lodge an appropriate amendment at stage 2.
I put on record my thanks to the Scottish Law Commission for its work on this reform project. I thank those who gave evidence, and I also thank the members of and clerks to the Delegated Powers and Law Reform Committee for their work in scrutinising the bill and for the committee’s stage 1 report.
I move,
That the Parliament agrees to the general principles of the Judicial Factors (Scotland) Bill.
I call Stuart McMillan to speak on behalf of the Delegated Powers and Law Reform Committee. You have around seven minutes, Mr McMillan.
15:45
As the convener of the Delegated Powers and Law Reform Committee—the lead committee for the Judicial Factors (Scotland) Bill—I am delighted to speak in the stage 1 debate on the bill.
I thank the minister for her helpful response to the Delegated Powers and Law Reform Committee’s stage 1 report and recommendations. The minister touched on that in her comments. This is the third Scottish Law Commission bill in this session of Parliament for which the committee has acted as lead committee. It is worth reiterating that that is a part of the committee’s role and remit that members appreciate and find very much worth while. I want to make the minister aware of a point that I put to the Minister for Parliamentary Business this morning: our committee is always happy to look at SLC bills. We have touched on that in the past.
For the vast majority of the population, Scottish Law Commission bills are, by design, rarely the most eye-catching pieces of legislation. They are less political by nature, but they are all crucial in ensuring that we have a statute book that is fit for purpose. We believe that the commission’s role in ensuring that the law keeps pace with the way we live and work in Scotland is very much worth while. The resulting legislation, such as the Judicial Factors (Scotland) Bill, is hugely important, even if quietly so. I pay tribute to the commission for its work on the bill.
Judicial factors are an ancient, pre-union institution of the Scottish courts. The minister explained what a judicial factor is, so I do not have to reiterate that. The bill updates the main current law on judicial factors, which is Victorian, dating from 1849 and 1889. It also repeals some even older acts of sederunt from the Court of Session, the oldest of which dates from 1690. That perhaps gives members a flavour of the age and background of the office of judicial factor and why it was an appropriate subject for the Scottish Law Commission’s attention.
The commission’s work in the area began back in the 1970s, but it stepped up a gear in the early 2010s with its 2013 report, on which the bill is based. We were very grateful to the Scottish Law Commission—including its chair, Lady Paton, former commissioner Patrick Layden, who led on the report, and the now former interim chief executive, Charles Garland—for giving evidence to the committee. We were grateful to all the organisations that engaged with us on the bill.
I pay tribute to my committee colleagues for the way in which they worked on the bill. All our recommendations were unanimous, and the committee agreed with the general principles of the bill. I also thank the Delegated Powers and Law Reform Committee clerking team for its crucial assistance during the stage 1 process.
There are only around 65 active judicial factories in Scotland. Those are open cases where a judicial factor has been appointed to manage the estate. The number of new appointments is also low, with only about seven applications for appointment a year. However, we agree with the consensus among witnesses and those who responded to the call for views that the role of a judicial factor is a necessary one that should be continued.
Of course, as with any bill, we identified a number of areas where more work may be worth while. I will briefly touch on a couple of the main points.
In her response to the committee’s stage 1 report, the minister agreed with a number of the committee’s recommendations. I also thank the Scottish Courts and Tribunals Service for its helpful response to the report.
One area that we must get right is when a judicial factor is appointed to help manage the estate of a missing person. The bill presents an opportunity to help the families and loved ones of people who go missing and will perhaps make an inevitably stressful and difficult situation slightly easier.
The charity Missing People gave compelling evidence to the committee, raising important issues such as how practical it would be for a lay person who is a family member or friend to be appointed as a judicial factor. The charity supported such a proposition, given the cost of having a professional—such as the solicitors and accountants who make up the majority of judicial factors at present—looking after the best interests of a missing person. It also asked what those “best interests” might mean in different situations and what evidence would be required for a court to accept that a person is missing.
It is encouraging that the minister has committed to creating guidance specifically on judicial factors in relation to missing people. We are assured that that will cover many of the issues raised by the committee, and that the Government will engage further with Missing People, which will be crucial in getting that area right.
The committee made a specific recommendation that the bill should include
“an explicit statement ... that it is competent to appoint a judicial factor to the estate of a missing person.”
We thought it important to ensure clarity on that point, and I would be grateful if the minister could say more in her summing up about how that could be addressed.
During our stage 1 scrutiny, we were encouraged by the willingness of both the Government and the Scottish Courts and Tribunals Service to adapt and review processes—including those for making complaints about a judicial factor—to make them easier for lay people to navigate. We hope that the implementation of changes will follow in a similar spirit.
In its report, the committee also raised the issue of how judicial factories are advertised, via a register, to those who need to know about them. Our report discusses data protection and the extent to which that area of law has sometimes been cited as a reason why information is not shared with judicial factors. The report also refers to the need to obtain a section 104 order from the United Kingdom Government to ensure that the bill gives judicial factors the powers that they need if they are to operate effectively.
I do not have time to go into those important issues in depth, but I am hopeful that the committee’s scrutiny will lead to positive differences between the bill as introduced and what the eventual act will look like.
Members will be aware that section 104 orders are, understandably, a recurring theme with SLC bills, so I would be grateful if the minister could provide an update in her summing up regarding any communication that the Scottish Government has had with the new UK Government on that matter.
My final point is about why no judicial factor was appointed in the case of McClure Solicitors. Committee evidence on that matter was helpful, and the Regulation of Legal Services (Scotland) Bill, which is also going through Parliament, may actually be of more assistance than the Judicial Factors (Scotland) Bill in ensuring that future clients do not experience anything similar.
As I said, although this might not be the most eye-catching bill, it covers a hugely important part of the legal landscape, and it is time for that to be modernised.
15:53
In a week’s time, we will celebrate the 25th anniversary of the Parliament. If you went out to the highways and byways of Scotland to ask people about the most exciting bills that the Parliament has passed in those 25 years, I suspect that this bill, like many others that have come through the Delegated Powers and Law Reform Committee, would not make it into the top 10 or even the top 20. However, those bills make a real difference to real people’s lives and, as Stuart McMillan pointed out, we are seeing a number of Scottish Law Commission bills coming into law. They may make small differences to small numbers of people, but those differences will make lives better.
I also thank the Scottish Law Commission for its work and I thank the clerks and all who gave evidence to the committee, which I attended on and off as the bill was going through. As Mr McMillan pointed out, there was real unity in trying to find a way forward with the legislation.
We in the Scottish Conservatives appreciate the crucial role that judicial factors can play in our legal system and we recognise the need for reform. I think that we all want the system to be updated and streamlined and the legislation to be better and more efficient.
As both of the previous speakers pointed out, there are not that many judicial factors. In 2022, there were only 64 open cases. However, judicial factors are important and we need to ensure that the appropriate services are offered to those who require them.
I welcome the minister’s comments this afternoon and her letter to the committee, which put us at ease on some of the issues that we raised. I look forward to scrutinising the stage 2 amendments that she will lodge in due course.
In the time that remains to me, I will highlight two or three areas where some clarity is still needed. The first, which both of the previous speakers mentioned, is the appointment of a judicial factor to manage the estate of a missing person. I think that we all have the same end goal and want to get to the same place, but I did not fully understand the minister’s response to Martin Whitfield’s question, so I ask her to clarify at stage 2, or in writing to the committee before then, why that matter should not be covered in the bill. The evidence that we took suggested—and the committee moved towards this view—that it should be in black and white in the bill. There may well be good reasons why that is not possible or why it would have a negative effect. The minister tried to explain that, but I and, I am sure, my colleagues would like to have more understanding of that.
Secondly, I appreciate that the role of the Accountant of Court is not within the bill’s scope but, as someone who is perhaps old-fashioned, I think that it would be helpful for someone in that role to have an accountancy or legal qualification. The recommendations that have been made on that should be considered at stage 2. One of the major reasons for the appointment of a judicial factor is that a legal firm has got into financial trouble, although, fortunately, that does not happen very often. I welcome the Law Society of Scotland’s input on that. As Mr McMillan said, we have to make sure that the law is updated enough to ensure that clients are properly protected when, on rare occasions, a judicial factor is appointed in those circumstances.
There is a helpful section in the report on charities and charity law. Again, there seems to be consensus on that, and I look forward to seeing any changes that are proposed.
We have a good bill, but we can make it a wee bit better at stages 2 and 3. I look forward to working with the minister and colleagues to ensure that that happens.
15:58
I echo the other speakers in thanking the Scottish Law Commission, the committee and its clerks, and I thank the Government for its prompt response to the stage 1 report. The Judicial Factors (Scotland) Bill may not be the most interesting bill but, as with so many uninteresting bills, if it happens to affect a person, it will suddenly become a very important part of their life. One of the crucial roles of the Parliament is to try to protect people and provide them with as much support and guidance as possible at times of challenge, irrespective of the number of people who are affected or the frequency with which the issue arises. As others have said, the bill takes a number of steps in the right direction.
I intervened on the minister to ask about missing people because I have concerns about that. My interpretation of her response is that she was saying, “The Government is confident that the general section covers missing people. We will address the matter in the explanatory notes and in guidance just to make sure that everyone knows about it, but we are not going to put it in the bill in case we limit the broad nature of section 3.”
With all respect, I do not find that to be a strong argument. We are talking about a group of people for whom life is incredibly conflicting on so many levels. The practicalities of how property, contracts and bank accounts are handled are a challenge that is never expected. Throughout the history of factors, that area has always been there, on the edge. We have an opportunity at the appropriate stage of the bill to clarify the situation—not to exclude anything else that the Government anticipates but to make sure that those who inadvertently find themselves in need are given the clearest support to understand that the judicial factor is there not to take over from them but to support them. I echo the convener and, in particular, the response from the Scottish Courts and Tribunals Service in saying that the practicality of that support can be spoken about in a language that is understandable. That would be useful. I therefore press the Government to explain further its positioning, because the issue will return. Possibly, across parties and with the committee’s input, there can be a way through without that becoming a problem.
I thank the Law Society for its response. In particular, I point out that it was in agreement with the recommendation that this issue would specifically appear in the bill and would welcome that. That is a powerful reason for us to look at the issue again and discuss it.
The other aspect that I would like to raise may be a challenge to address this afternoon, but I would be more than happy to receive correspondence on it. I raise it simply because of my on-going interest in the safeguarding of children. That aspect relates to the Children (Scotland) Act 1995. The proposals that were contained in the 2019 consultation do not appear in the bill. The purpose of those was, in essence, to protect the role whereby property that is owned by children is handled by a factor, and give effect to the safeguarding that is required to ensure that that is not exploited. Given the subsequent passing of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, it would not be inappropriate for the Government to express why that matter has not been pursued. I am more than happy for that to be done in writing.
I welcome the bill and the attempt to put right that mix of statutory and common law that has crashed together over the centuries, as the committee convener pointed out. Given the hard work of the Law Commission, we should take every opportunity to make sure that the bill that leaves this place is fit for purpose this year, next year and perhaps for the next 300 or 400 years. I am grateful, Deputy Presiding Officer, for your patience.
16:03
I extend my thanks to the Scottish Law Commission, the committee members and clerks, and those who responded to the various consultations on the bill—especially the charity Missing People. The meticulous, informed and considered work by all involved has been both impressive and encouraging, and I hope that, in the formal stages to come, we can speak and act with the same levels of wisdom and empathy.
I do not suppose that many people will be screaming from the rooftops, or that there will be many headlines, about the debate or the bill that we are considering. Most people, I imagine, go through their lives without ever encountering a judicial factor. It is a shame, perhaps, that the chamber is not packed with journalists eagerly reporting every one of our speeches, because the subject of this afternoon’s proceedings is a salutary example of what the Scottish Parliament can do, quietly and steadily, without fanfare or grandstanding, and with real co-operation across parties and with other institutions, other bodies and wider civil society.
The work of the Scottish Law Commission is hugely important for the development of responsible, relevant justice in Scotland. Its law reform recommendations allow us to combine the unique traditions of Scots law with policy and processes that meet the needs of people and communities today and, I hope—and as Martin Whitfield indicated—into the future, too.
That is illustrated by the Scottish Law Commission’s and the committee’s work on the bill to explore ways in which the appointment of a judicial factor could help in a range of difficult situations. One such is when a person goes missing, for they leave behind them, with their families and friends, not only anxiety, pain, loss and uncertainty but the practical difficulties involved in managing their financial matters. The charity Missing People offers a lifeline to those who are either missing or thinking about going missing and also to those who are affected by a disappearance. Like me, many members here will know of people whose lives have been saved by the charity’s sensitive and painstaking work. Missing People has engaged closely with the development of the bill, in recognising how the appointment of a judicial factor might be a way of enabling families to deal effectively and efficiently with the financial issues that arise from a disappearance.
I understand that the bill has not been able to do everything that the charity had hoped for, but I warmly welcome the Scottish Government’s commitment to work with it to address the outstanding issues, including the development of appropriate guidance and procedures. I support the committee’s call for the bill to be amended to make absolutely explicit its applicability to families who have been affected by disappearance. I, too, will be interested to hear the minister’s closing remarks on that point.
In working to make the bill’s processes as straightforward and seamless as possible, we must acknowledge that not all relevant relationships will be within Scotland or will be concerned with devolved matters. I therefore welcome the Scottish Government’s on-going discussions with the UK Government on the potential for a section 104 order, which would oblige UK ministers and bodies that deal with reserved matters to provide information on the same basis as for matters within devolved powers.
On behalf of the Scottish Greens, I welcome the bill and look forward to working with other members, in the chamber and beyond, to help make it as valuable as possible in addressing the needs of people and communities in Scotland today and in the future.
We move to the open debate.
16:07
As a substitute member of the Delegated Powers and Law Reform Committee, I am pleased to speak in this important debate. On the face of it, as others have said, the bill presents as being pretty dry and technical, but, as is always the way, it concerns a subject that is vital to ordinary citizens in many ways.
Judicial factors are appointed by courts to look after property that belongs to someone else. They can also be appointed to oversee a solicitor’s firm where there has been a breach of the Law Society of Scotland’s accounting rules or where a sole practitioner dies. Alternatively, they can also be appointed to wind up the estate of a deceased person or to oversee charity property or the estate of a missing person. Essentially, they do the background work that many of us might need at some point in our lives.
The fact is that, as we have heard, the law relating to judicial factors is in desperate need of modernisation; the existing legislation dates back to the 19th century and is now regarded by those who use it as outdated. At present, the majority of individuals who are appointed as judicial factors are legal or financial professionals. The Scottish Government has set out a key policy objective for the reforms, which is to create a comprehensive regime in one piece of legislation, and I welcome what is a long-overdue move. The bill introduces a statutory framework that sets out clearly the essential features of the office of judicial factor and the broad parameters within which it should operate. It aims to bring clarity, accessibility and efficiency.
In 2010, the Scottish Law Commission published a discussion paper on judicial factors, in which it analysed the existing law. In 2013, the commission published its recommendations for reform of the law, and in 2019, the Scottish Government consulted on those recommendations and the current procedure for appointing judicial factors in missing persons cases.
One of the elements that I described earlier was the support that the bill can give to the family of a missing person, which Martin Whitfield has just mentioned. The distress of such a situation is unimaginable, which is why the bill and the support that it will offer are so important. In addition to the emotional distress, the practical implications for family members of having to deal with that person’s property and financial affairs while they are missing must be heartbreaking. In such cases, judicial factors can be appointed to manage the missing person’s estate and so relieve that stress.
I am pleased that the Scottish Government has committed to working with the charity Missing People to prepare guidance for those who are considering appointing a judicial factor to manage the estate of a missing person. That is to be greatly welcomed, and it confirms the measured and committed way in which the Government is addressing the issue. I also point out that the bill does not make provision about what evidence is required to satisfy a court that an appointment should be made, as, rightly, that will depend on the circumstances of each case.
A theme running through the committee’s consideration of the bill was its application to situations where a judicial factor is appointed or might be appointed to manage the estate of a charity. The Scottish Government has started consultations with stakeholders on proposed changes that are sought by the Charity Law Association ahead of lodging any stage 2 amendments that might be needed in that area. Again, that is an important provision. The minister has advised that, ahead of stage 2, when that engagement is complete, she will write to the committee to confirm the Government’s intentions.
A clear and accessible complaints handling route is vital. It is not included in the bill, but the Scottish Government will work with the Scottish Courts and Tribunals Service and the Accountant of Court to ensure that information on how to make a complaint about a judicial factor is clearly accessible.
Overall, a majority of respondents to the committee’s consultation supported the Scottish Law Commission’s recommendations, confirming the need for existing legislation to be updated, and the bill takes forward, without amendment, the majority of the SLC’s recommendations for reform.
This is a good and necessary bill, and I thoroughly recommend that it passes at stage 1.
16:11
I am having a slightly strange day. I sat through the previous education statement and found myself agreeing with almost everything that the cabinet secretary was saying and then—I hope that this is taken in good spirit—I came to this debate and found myself agreeing almost entirely with Maggie Chapman. I think that she is right and, to a degree, what Jeremy Balfour said at the start of the debate was right, too. The Scottish Law Commission’s bills and the work of the Delegated Powers and Law Reform Committee show this Parliament at its best and demonstrate what good committee scrutiny is like.
When I was a member of the DPLR Committee, I found it to be an easy role because the things that that committee deals with are, by their nature, far less political than the things that are addressed by other committees. After that, I moved to the ever-so-exciting Standards, Procedures and Public Appointments Committee. Perhaps in the time that I have left here, I will go on to a different committee and take to it the knowledge that I have gained from my membership of those committees.
That would be useful because, having been on some of the more political subject committees in the past, I think that the kind of work that those committees do sometimes gets lost among the politics. It is good that we have this particular process up and running and working well, because, as other members have said, those areas of law are really important to those whom they affect, and they are also areas that have been neglected for a long time.
That leads me to the one area where the minister could go further: that of missing people, which has already been referenced by other speakers. I understand the point that she makes about section 3 and whether that is the right place to include a reference to missing people, and I am open to hearing more on that.
However, although I know that the minister was, like members of the committee, very convinced by the evidence that we heard, there is a danger of not including a requirement to produce the guidance. We do not know how that area of law will evolve in the future, and there are lots of other mechanisms in the bill that would allow for changes to be made. Is there space somewhere else to include a requirement to produce that missing person guidance and to review it periodically to make sure that it continues to be effective? That might be an alternative course of action.
I know that Oliver Mundell was on the committee when we considered this issue but, for the benefit of others in the chamber, I note that, when we were producing the stage 1 report, we had a lot of debate on the missing people issue, because the evidence that we heard was extremely compelling and powerful, and we wanted our report to reflect that and to help the Government with any potential amendments.
I thank the committee convener for that intervention. I am looking at recommendation 56 on page 10 of the committee’s report. I know the wording that was agreed; I remember being there when it was discussed. The committee indicated a strong preference for a reference to missing people to be included in the bill, although we said that we did
“not have a strong preference for how such a reference be added”.
That is one of the advantages of going through this staged process: there is still time to have another look at such considerations. Including the reference in the explanatory notes is a step forward for a group of people and families, and the organisations representing them, who often feel that they are not at the centre of policy, because of the small numbers of people affected and the complexity around that. It is probably not even the most significant issue for those families. Having something concrete would be a starting point but, on the basis of the evidence that we heard, I think that we can do a little bit better. I look forward to hearing a bit more on that area from the minister, and on some of the other points that she has offered to revisit.
16:15
I give a quick thanks to the clerking and legal teams on the DPLR Committee. They do a fantastic job.
The Judicial Factors (Scotland) Bill is a critical step forward in modernising and streamlining our legal framework. The bill is not just a technical adjustment; it is a vital piece of legislation that will help to bring clarity, accessibility and efficiency to an area of law that has long been in need of reform. The existing legislation on judicial factors dates back to the 19th century, when the legal landscape was vastly different from what we know today—just ask Stuart McMillan.
I enjoyed that one—I don’t know about anybody else.
Those dealing with this area of law, including legal professionals and the individuals who are directly affected, have long highlighted how outdated the current system is. Procedures have become cumbersome, convoluted and no longer fit for purpose in today’s Scotland. The bill addresses those concerns head on, with reforms that reflect the modern legal environment and the needs of the people it serves. The bill’s primary aim is to create a comprehensive regime by consolidating the scattered and outdated provisions into one clear and accessible piece of legislation. It introduces a statutory framework that sets out the essential features of the office of the judicial factor and the broad parameters in which it should operate. By doing so, we will simplify and streamline the process, making it more efficient and less intimidating for those who need it most.
Judicial factors play a vital role in safeguarding property and estates in complex situations. Whether it involves stepping in to manage the affairs of a deceased individual or a missing person, or cases in which a solicitors firm has breached the Law Society of Scotland’s accounting rules, the role of the judicial factor is indispensable. Although the number of appointments might have decreased in recent years, the bill acknowledges that there is a continuing need for judicial factors, particularly in certain complex and sensitive cases.
One of the key elements of the bill is the provision that it makes for the families of missing persons. As we know, the emotional and practical burdens that fall on families when a loved one goes missing are immense. The bill ensures that judicial factors can be appointed to manage the estate of a missing person by conserving their assets and protecting their interests until they return or are declared deceased. That will bring much-needed relief to families who, in addition to their emotional distress, might face financial and administrative challenges.
Another important aspect of the bill is its application to the estates of charities. We have heard from stakeholders such as the Office of the Scottish Charity Regulator, which has expressed its support for the bill. The Scottish Government’s on-going consultations with stakeholders, including the Charity Law Association, will ensure that any necessary amendments are made at stage 2, making the bill’s provisions as robust and effective as possible.
The bill builds on years of careful consideration and consultation, beginning with the Scottish Law Commission’s recommendations back in 2013 and continuing through extensive engagement with stakeholders in recent years. It is a thoughtful and considered piece of proposed legislation that will benefit not just legal professionals but individuals, families and charities across Scotland.
The bill is long overdue. It brings our laws into the 21st century, ensuring that they are fit for purpose and can meet the challenges of modern Scotland. By providing clarity, accessibility and efficiency, the bill will make a real difference to those who rely on the vital role of judicial factors.
16:20
As other members have done, I will speak in favour of the Judicial Factors (Scotland) Bill, which is an important bill that will put in place an updated and comprehensive regime that will bring much-needed and overdue clarity, accessibility and efficiency to a vital but outmoded area of law.
I refer colleagues to my entry in the register of members’ interests. I am still on the roll of Scottish solicitors.
As others have said, including the convener, who, in an excellent speech, set out the evidence that was taken at stage 1 and the diligent work that the committee has done, the bill is about service. If it proceeds through the various stages and is passed, it will be more effective than what is in place at the moment in how it deals with people who are affected in the scenarios in which the law applies and, in particular, more sensitive to the needs of the loved ones of missing persons.
The bill is also about facilitating more effective utilisation and application of the law. As someone who has, in the past, advised on complex areas of law, I know that the more usable the law is for solicitors, the better the service will be, especially on sensitive matters. The bill is important in that it will help those who provide professional advice and those who receive their advice.
The fact that the bill is a consolidating bill is to be welcomed. Obviously, it is a specific example of consolidation, which is necessary because of the historical nature of the current legislation, which covers quite a long period, to say the least—it is clear from what the convener said that we are talking about centuries. The law needs to be tidied up.
The Parliament will probably want to think a bit more about the consolidation of legislation in the period ahead. The bill was developed by the Scottish Law Commission, which does extremely good work. The commission’s thoughtfulness, expertise and diligence—the way in which it works through every eventuality, using all its experience and insight—mean that the proposals that it brings to the Parliament and to the people of Scotland are, in the vast majority of cases, ones that we want to pick up, legislate well on and get on to the statute book.
For all the reasons that have been outlined, and to help members of my former profession in their work in future, I will be happy to support the bill at stage 1.
We move to the winding-up speeches.
16:23
In closing for the Scottish Greens, I reiterate my thanks to all those who have worked so hard, so co-operatively and so effectively on the long process, which began with the first discussion paper of 2010, of bringing the bill so far. I am grateful to members for their positive contributions to the debate, and I am heartened to see such wide-ranging examples of cross-party consensus. That goes to show—I say this to Mr Mundell, in particular—that there really is a first time for everything.
Many of the debates about the bill are not so much about its substantive provisions but about what needs to be explicitly stated and what is already the case under existing law. Those judgments have to be made in relation to issues as various as data protection and the power to choose environmentally sustainable and socially just investments. We have heard about how little the office of judicial factor has been used over recent years and how the complexity and, in some cases, the antiquity of previous legislation have contributed to its rarity, but we can hope that, once the bill becomes law, people will know not only that judicial factors exist but that they can help with some very contemporary problems.
We have heard about the flexibility of the proposed legislation and the way that it recognises the fact that a judicial factor acting to protect the clients of a solicitors firm, a judicial factor paying a missing family member’s mortgage and a judicial factor winding up a deceased person’s estate might be very different people carrying out very different tasks.
We have heard about what else needs to be done—what amendments, guidance and further action the committee and others are seeking in order to make the bill as effective, its processes as transparent and its implementation as thorough as possible.
The issues that relate to missing people include cost and complexity, the situation when the missing person returns and the interrelationship with the Presumption of Death Act 2013. Those issues particularly demand our attention and care.
The Scottish Greens look forward to those developments and will do what we can to support them. The bill brings long-standing legal traditions into our contemporary context, asking and answering the questions of how we can learn from the past and how we can do justice now and for future generations. We will all seek to do our best to get those answers right.
16:26
Scottish Labour supports the bill, which we regard as non-controversial. We note that the Law Society of Scotland agrees that the law relating to judicial factors is in need of modernisation and that it is supportive of the bill and an up-to-date codification of this area of law. As Ben Macpherson said, it is a consolidating bill.
As the minister indicated, missing people was one of the areas that the committee focused on. I welcome the minister’s commitment to continue to work with those involved in this issue, including the charity Missing People. We thank the committee for all the work that it has done on the bill and for its stage 1 report, which clearly outlines the issues. We agree that the role of judicial factor is a necessary one that needs to continue. As the convener said, it is important that we get the law right in relation to a judicial factor for a missing person.
I was pleased that the convener, who has been heavily involved in the McClure Solicitors issue as the constituency MSP, raised the question whether a judicial factor should have been appointed in that situation. Like him, I have been consulted by a number of constituents who have lost huge amounts of money as a result of the actions of McClure Solicitors, and it will be interesting to hear whether the minister believes that the bill might have made a difference, if it had been enacted previously.
As many speakers said, there have been very few judicial factors, but we need to ensure that the law is updated to deal with situations such as when solicitors firms get into financial difficulties.
Martin Whitfield raised more than once the issue of missing people and the failure to make specific provision on that in the bill. Oliver Mundell also spoke to that point, and the convener confirmed that it was a significant point that the committee considered. I hope that the minister will clarify whether an amendment will be forthcoming from the Scottish Government to put specific provisions on that in the bill.
Rona Mackay said that the bill was dry and technical. However, like Maggie Chapman, she spoke about how important it could be to individuals. She pointed out that since the Scottish Law Commission made its recommendations, it has taken 11 years for us to get the bill. Perhaps that was because of how few cases there are. She also said how important it is that there is engagement prior to stage 2.
I looked carefully at what the Law Society of Scotland said about the bill. It is clear that it supports the committee’s conclusion that a complaints process for judicial factors does not need to be included in the bill. We accept its view on that issue. However, it is supportive of steps to improve the accessibility of and signposting to existing complaints mechanisms and it welcomes the Scottish Government’s commitment to take forward that recommendation.
The Law Society took the view that the bill preserved the jurisdiction of the Court of Session for hearing applications to appoint a judicial factor, and that that was the correct approach. However, it sought clarification on the proposed interaction between the bill and the Adults with Incapacity (Scotland) Act 2000, and suggested that a power to appoint a substitute judicial factor should be added to the bill. It would be helpful if the minister could respond to those points, either today or as the bill process continues.
The Law Society also took the view that the exclusion of certain UK bodies from the duty to comply with the notice issued by a judicial factor or by the Accountant of Court would adversely impact the ability to obtain relevant information. We therefore welcome the Scottish Government’s intention to explore extending that duty. We also welcome the Scottish Government’s commitment to clarify or remove references to data protection legislation in those sections of the bill.
I was going to ask the minister to respond to a couple of points. The committee highlighted that the Scottish Courts and Tribunals Service’s evidence indicated that there could be a cost of £380,000 if the bill did not get royal assent; it would be useful if the minister could respond to that. In addition, the minister said in committee that the Government was looking at how the bill could be amended at stage 2 to capture the way in which complaints against a professional body could be made in the context of solicitors and regulated professions. Again, it would be useful if the minister could respond to that point.
It is extremely positive to take part in a debate in which there is so much consensus among members in the chamber. We look forward to having a positive debate as we go forward to make sure that we get the best possible law in this area.
16:31
I agree with Katy Clark; I have not been in Parliament for very long, but I would have thought that more consensual debates happened more often—maybe not.
I am delighted to close the debate on behalf of the Scottish Conservatives. It has been a very gentle and kind Thursday afternoon debate. I add my thanks to those of other members to the Delegated Powers and Law Reform Committee’s clerks and advisers for all their work on the bill; it really has been outstanding. I also thank all those who gave evidence during our scrutiny of the bill.
As my colleagues Jeremy Balfour and Oliver Mundell said, Scottish Conservatives support the bill’s intention to reform, update and consolidate the legislation on judicial factors. I could probably just stop there and say, “Ditto” to what Katy Clark said. I think that I must have got a copy of her speech, because mine was pretty much identical. I will pick up on just a few of the points that I was going to make.
The first one was on the law reform backlog. The Scottish Law Commission originally published a discussion paper on that in 2010, and it made full recommendations in 2013, but we are now in 2024. I welcome the minister—and, I think, Stuart McMillan, too—saying that there will be more of these bills coming through. I think that that would be a good thing in order to deal with such matters, because, while these little things might not be of great interest, they matter to the people who require them. I am looking forward to the legislation coming to Parliament.
On the point about missing people, I cannot add much, except to say to the minister that there seems to be consensus around the need for something on that in the bill. I hope that the minister will go back and speak with her advisers about that, because it would be good if the Government could bring something on it forward at stage 2, so that we could all coalesce around it rather than leaving out that important aspect. Martin Whitfield, Oliver Mundell and Katy Clark, among others, all raised that point.
The committee examined the issue of the complaints procedure quite thoroughly during its stage 1 scrutiny, following the suggestion from the Faculty of Procurators of Caithness that it could be strengthened. While the committee concluded that it was content with the current system of complaints, as a sensible compromise, we would also like to see the Scottish Government, the Scottish Courts and Tribunals Service and the Accountant of Court work to improve access to information about the complaints process. That brings us back to the point that the process has to be as accessible as possible on the very few occasions that it is actually required.
I will pick up on the point about the Law Society of Scotland’s in-house judicial factor. The committee read the argument in the written evidence from the Faculty of Procurators of Caithness against the Law Society of Scotland having an in-house judicial factor and the power to appoint that judicial factor in certain circumstances. Having listened to the evidence, the committee was pretty content that it was fine for the Law Society to have the ability to petition to appoint its in-house judicial factor, having accepted that there are adequate avenues for anyone who is opposed to that to oppose it in court, and that there are processes available in the complaints system. However, great responsibility comes with that power, and I urge the Law Society always to remember that when it is covering those two bases.
During the committee’s evidence taking, there was some debate with regard to the creation of a stand-alone register for judicial factors. The committee finally settled on a compromise and agreed to the proposal in the bill to register judicial factors in the register of inhibitions. I welcome the minister’s opening remarks, in which she said—if I have got it correct—that the Government will bring forward an amendment at stage 2 to look at the periodic review of that.
This law reform is very welcome, and it will be important to those who seek it. I thank the DPLRC and the minister, and I will welcome the approval of the bill at stage 1 this evening.
16:35
I thank all members for their contributions to this afternoon’s debate. I repeat my thanks to the Scottish Law Commission for the work that has gone into this project and to the Delegated Powers and Law Reform Committee for its work in gathering and responding to evidence on the bill.
A few members who are in the chamber today might remember last year’s debate on reform of trusts law, the principal statute of which dates back to 1921. The office of judicial factor has an equally long history in Scots law, as Stuart McMillan mentioned in his speech, and the most recent statutes that are dedicated to the office date from 1849 to 1889. This year’s legislative programme includes a bill that will implement the SLC’s recommendation on the termination of leases and notices to quit; one of the principal pieces of statute in that area dates from 1756, although it was re-enacted as recently as 1913.
Progress on updating our laws is clearly being made. Really important work is going on in the Scottish Government and in Parliament, and, as Maggie Chapman highlighted, sometimes that is not recognised.
If Parliament passes the bill, a modern and broad framework that sets out the essential features of the role and supervision of judicial factor will be put in place. That will bring clarity, accessibility and efficiency to this area of law, which we hope will mean that the solution of appointing a judicial factor is used in a wider range of circumstances.
The SLC’s recommendations achieve the aim of setting out a modern framework for the appointment and supervision of judicial factors. The committee and members who are here today have identified points of detail where they consider that improvements can be made to the bill. I will take away those points and reflect on them; I will also come to some of them later in my speech.
I am willing to listen to and, where I can, work with members of all parties on the bill. Despite the points of difference, I am pleased to hear from members across the chamber that there is broad support for the general principles of the bill.
I will use what time I have left to discuss issues that have been raised this afternoon, of which there are quite a few.
First, I come to the issue of missing people. Most members have commented on that, due to the compelling evidence that the committee took. I understand that missing persons is an emotive issue, but we do not create legislation in a vacuum. We must take into account the rules of statutory interpretation. As I have said, adding something to the bill to make it clear that a judicial factor can be appointed to manage the estate of a missing person could mean that the court does not agree to appoint a judicial factor in other circumstances. That risk is considered to be unnecessary, but I am listening to members, and my door is always open if they wish to discuss that further with me.
I will move on to the issue of charities, which Jeremy Balfour raised. Judicial factors can be appointed in a wide range of circumstances, and some stakeholders have suggested possible amendments with regard to circumstances in which a judicial factor is appointed to manage the estate of a charity. I am exploring those suggestions and, once engagement with the relevant stakeholders is finished, and ahead of stage 2 proceedings, I will write to the committee to confirm my intentions.
I will write to Martin Whitfield in response to his point about the Children (Scotland) Act 1995.
The issue of section 104 orders and communication with the UK Government was raised. Most of the bill’s provisions will apply only in Scotland; however, there are certain provisions that I think should apply in the rest of the UK as well. The aim is to ensure that a judicial factor that is appointed to manage an estate is able to exercise their functions in relation to the whole of the estate, regardless of where the property is in the United Kingdom. Intergovernmental arrangements are in place to manage the delivery of orders that require to be made under section 104 of the Scotland Act 1998, and officials are in discussion with the UK Government about seeking a section 104 order for the bill. So far, those discussions have been positive, and that work will continue as the bill progresses. I will keep the Parliament updated on progress.
Katy Clark and Stuart McMillan highlighted the McClure’s issue. Under the Solicitors (Scotland) Act 1980, the Law Society of Scotland can apply to the court for an appointment of a judicial factor to a solicitor firm in certain circumstances. Such a judicial factor does not carry out any legal work in the way that an incoming firm is able to do in many cases, and it might be preferable for another firm to take over the business of a failing firm rather than to put in place a judicial factor. Ultimately, the Law Society of Scotland, as the regulator, would generally be best placed to decide whether to seek appointment of a judicial factor to a solicitor firm.
The Scottish Government has taken proactive steps to militate against a situation like that of McClure’s happening in the future. Members will be aware of my other bill that is proceeding through Parliament—the Regulation of Legal Services (Scotland) Bill—which will introduce the authorisation of legal businesses, to bring benefits such as greater consistency in regulating legal firms, and to enable the Law Society of Scotland, as the regulator, to identify and address deficiencies early.
Tim Eagle brought up a point that the Faculty of Procurators of Caithness highlighted to the committee, and I welcome the committee’s view that the system is a sensible approach to the complaints procedure. I have listened to what was said about the accessibility of the complaints procedure, and officials will work with SCTS and the Accountant of Court to make sure that information on how to make a complaint about a judicial factor is clearly accessible.
Katy Clark mentioned royal assent. I do not have any information that the bill will not get royal consent, but I will keep her updated if that is a problem moving forwards. She also mentioned the Law Society of Scotland briefing that was sent to members, which raised quite a few technical aspects of the bill. My officials reached out to the Law Society when we received the briefing, and we are meeting it next week to discuss and go through that.
I believe that today’s debate reinforces the impression that there is broad support for the bill and its policy aims. Parliament has an opportunity to look at and consider an area of law that does not usually rise to prominence but is of vital importance to those who need it and who rely on it, whether to distribute a deceased person’s estate or to manage a missing person’s property. As a whole, the bill seeks to bring the law up to date and takes forward all the substantive recommendations for reform that were proposed by the Scottish Law Commission.
I thank the members who have contributed to today’s debate, and I welcome their broad support for the general principles of the bill. As the debate has indicated, however, there are matters to consider and differences of view on points of detail. I look forward to working with the committee and members from across the chamber to consider those issues in the coming weeks.
That concludes the debate on the Judicial Factors (Scotland) Bill at stage 1.
Air ais
Qualifications and AssessmentAir adhart
Motion without Notice