Skip to main content

Language: English / Gàidhlig

Loading…

Seòmar agus comataidhean

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

Criathragan Hide all filters

Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 10 April 2025
Select which types of business to include


Select level of detail in results

Displaying 1351 contributions

|

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

That is fine.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I do not see any difficulties with the report on serious misconduct by a solicitor acting as a judicial factor being sent to the Law Society, because my understanding is that, if there was a complaint, it would be sent to the Law Society in the first instance and then to the SLCC.

The Law Society advised my officials that, under the provisions of bill, if the accountant were to report serious misconduct by a solicitor, the Law Society would pass that on to the SLCC as a matter of practice, and there is nothing in the bill that would prevent the accountant from sending a copy of the report to the SLCC as well.

However, I will consider the matter further to see whether what would happen in practice could be more accurately reflected in the bill.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Currently, if someone has a complaint against a judicial factor, they can raise that directly with the judicial factor or with the Accountant of Court, given the accountant’s supervisory role. That will continue under the bill, with the accountant being required to investigate any concerns in relation to judicial factors acting.

The bill also gives the accountant a power to issue directions to the judicial factor and, further, if the accountant concludes that there has been serious misconduct or material failure, they must refer the matter to the court to be dealt with. Most judicial factors are members of a regulated profession, and that is another way for complaints to be heard.

The committee has heard from a number of stakeholders, and there does not seem to be any support for a new complaints procedure to be set out in the bill. I consider the current approach to be a practical and sensible way to deal with complaints at the moment.

Does Michael Paparakis want to add anything?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Yes. The Regulation of Legal Services (Scotland) Bill team is working on amendments with the Law Society and other MSPs to address that concern. I am comfortable that that bill will address the specific issue.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I note that we recently hosted Lady Paton, who came here with people from all over the UK to show them around the Parliament. They were really impressed that we had the committee, which enables scrutiny of the proposals that are put forward. That is positive.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

We are at the early stages of the process, so the exact drafting approach has not yet been agreed. However, the aim is to ensure that a judicial factor who is appointed to an estate can exercise their functions in relation to the whole of the estate, regardless of where in the United Kingdom the property is situated, and ensure that the relevant property is appropriately managed. As such, it is intended that the section 104 order will extend some of the provisions in the bill to the whole of the United Kingdom, including provisions on the vesting of property in a judicial factor, the ingathering of property, a judicial factor’s functions and information sharing.

The intention is also to explore the application of the requirement to comply with the information requests to bodies that are excluded under the bill, such as UK Government departments and bodies with other reserved functions. Officials have made initial contact with relevant UK Government departments about seeking a section 104 order. Those discussions have been positive thus far, and we will continue to have them as the bill progresses.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Yes—we would include those. The average timescale in relation to section 104 orders at the moment is 12 to 18 months.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Of course.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Yes—sorry. I apologise.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I do not consider at this stage that it is necessary for a person who is appointed as a judicial factor to hold a professional qualification. The bill takes a flexible approach to who may be appointed to ensure that it can cater to a wide range of circumstances. Discretion is given to the court to decide whether the person in question is a suitable person to hold the office in the particular circumstances of the case.

Reading the bill as a whole, it is clear that safeguards are in place—for example, judicial factors are supervised by the Accountant of Court, and they are under a duty to obtain specialist advice where appropriate. Most judicial factors who are appointed are either legal or financial professionals, but there may be circumstances where that is not necessary or even desirable—you mentioned our farming and agricultural expert.

To require a judicial factor to hold a professional qualification would also add unnecessary costs to the administration of the estate. I agree with what the Faculty of Advocates said, which is that we should trust the discretion of the court to take into account the circumstances of the individual case and appoint the most suitable person as the judicial factor.