Seòmar agus comataidhean

These are minor and technical amendments.

Amendments 14 and 15 are technical amendments that address a point that was raised by the centre for Scots law at the University of Aberdeen in its written evidence. Section 10(7) defines “factory functions” for the purposes of sections 10 and 11, but there is no reference to the “factory functions” as such in section 11. Rather, section 11 makes reference to “standard powers” and

“functions set out in sections 12 to 19”,

both of which fall within the definition of “factory functions”. Amendments 14 and 15 make minor adjustments to correct that.

The definition of “financial assets” in section 13(4) was raised as being an issue by the centre for Scots law and by the Law Society of Scotland. In particular, the Law Society was concerned about the practical effect of trying to decide whether a particular financial asset was of a similar nature to cash accounts or share certificates.

Given that the definition was found to be unhelpful, I have lodged amendment 17 to leave the term “financial assets” undefined. The effect of that is that those words will now be given their ordinary natural meaning.

Section 33 allows for termination of a judicial factory when there are insufficient funds

“to meet the expenses of ...

(a) any formulation by the judicial factor of a scheme”

for distribution of the estate

“(b) the seeking of approval of such a scheme, and

(c) distribution of the factory estate in accordance with such a scheme.”

In written evidence, it was queried whether section 33(1) should have “or” instead of “and” between paragraphs (b) and (c). The issue is whether section 33 should apply only when all three conditions are satisfied or whether it should also apply when only one or two conditions are met. It is considered that there may be circumstances when, for example, there are sufficient funds to formulate a scheme but insufficient funds to seek approval and to distribute the estate. As such, there is value in having greater flexibility, with section 33 covering a wider range of circumstances, and amendment 30 adjusts section 33 accordingly.

On amendment 31, the committee asked me to consider whether the relationship between section 34 and section 38 needs further clarification, and I have given that some thought. Although I do not think that anything should be added to the bill to clarify the relationship between the two provisions, I consider that section 34 can be usefully amended to make it clearer to users of the legislation that it is not only any criminal liability incurred by the judicial factor in the course of their actings as judicial factor that continues after discharge, but also any civil liability connected to the relevant acts or omissions. Amendment 31 makes that change.

Section 43 allows persons with an interest in the factory estate to inspect or obtain copies of certain documents relating to the factory. Those documents are listed in section 43(4). The Law Society has highlighted that the inventory is not specified in section 43(4) and that that differs from the SLC drafting, which refers to the

“inventory, management plan, annual accounts and audit report”

as being open to inspection. The inventory was unintentionally omitted from the bill as introduced, and amendment 37 corrects that. It also adds to the list of documents available for inspection the balance sheet that must be prepared when a replacement judicial factor is appointed.

The word “section” is repeated in section 45(2)(a), and amendment 38 corrects that error.

Finally, amendments 40 to 42 make consequential amendments to the Bankruptcy (Scotland) Act 2016, following written evidence from the centre for Scots law.

I ask members to support the amendments in the group.

I move amendment 14.

Amendment 14 agreed to.

Amendment 15 moved—[Siobhian Brown]—and agreed to.

Section 10, as amended, agreed to.

Schedule 1 agreed to.

Section 11 agreed to.

Section 12—Power of judicial factor to require information

The Government is independent of the SCJC, so consultation is up to the SCJC. I know that it has committed to consult on that issue next year.

I do not know whether any of the officials would like to add anything further.

I thank Pam Gosal for that question—I was watching the previous session before I came to the committee.

As I said in my previous answer, I have been clear thus far that we will not be introducing a bill in the current session of Parliament. I am really keen to look at legal aid reform, but it would be more in the landscape of secondary legislation. We have been listening to the committee, and it is important that we look in particular at different funding models for access to justice on environmental issues.

My officials are currently developing a paper on legal aid reform that will, in the coming months, set out the potential areas of reform. We are planning to host a variety of engagement sessions along with that.

Denise Swanson might want to add to that.

On legal aid reform?

The issue of whether there should be a dedicated environmental court in Scotland has been discussed for many years, and it is clearly a question of interest within many portfolios and the Scottish judiciary.

The most recently published statement on the issue was in the “Report into the Effectiveness of Governance Arrangements, as required by section 41 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021”, which the Scottish Government published last year. That report had to consider whether an environmental court would enhance the environmental governance arrangements that were put in place by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 to rectify the inadequacies that were created by the UK leaving the European Union. The report also considered wider issues of environmental governance in the context of the 2021 act.

The report stated:

“The Scottish Government recognises the strengths in the current balance of parliamentary, administrative and judicial roles in decision making on environmental matters, and does not see any strong argument for the creation of a specialist court.”

We have since consulted on that report, and a written statement will be laid before Parliament soon. It would not be appropriate for me to pre-empt that statement, but I will highlight some points.

The court in New South Wales was highlighted in the previous session. There are two key examples of such courts operating, in New Zealand and Australia, which have been discussed by stakeholders. As has been described, those courts have remits that mainly cover disputes about local spatial plans, environmental permits and planning applications. Most of the cases are not of a nature that would lead to a judicial review in Scotland; rather, there would be a reconsideration of the merit of plans and the decisions themselves.

In general, Parliament has shown little interest in such matters being considered by courts in Scotland in the same way that such issues are considered by those courts in Australia and New Zealand.

I cannot pre-empt what will be in the statement, but it will be given to all MSPs when it is available.

That is not under my portfolio, but we can write to the committee about that.

I will bring Walter Drummond-Murray into the discussion. As you said, it is quite a complex subject. I have responsibility for the access to justice part of it. There are also the environmental and planning aspects. We need to have a holistic, joined-up approach.

Historically, Walter has been dealing with the issue.

Perhaps I can give you a little bit of history first. When the ACCC reported back in 2021, it asked that the UK be required to submit an action plan in 2022, followed by a progress report in October 2023 and a final progress report in October 2024. However, following the general election in July, and the consequent change of Government, the ACCC agreed to an extension for the submission of the final progress report to the end of this month. The Scottish Government supplied our report to DEFRA several weeks ago.

As I said, we know that the SCJC has committed to public consultation on the extension of protective expenses orders to the sheriff courts. That will be in its work plan for 2024-25.

As it is independent of Government, it would be inappropriate for me to comment at this stage. If we got to the end of that consultation and there were concerns, it would perhaps be an issue that Government could consider at that stage. However, as the SCJC is moving towards a consultation, I do not think that it would be appropriate for me to interfere.