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Official Report: search what was said in Parliament

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

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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
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Displaying 1351 contributions

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Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I consider that a matter for the Law Society and the persons involved in an application for an appointment. I can see the benefit of the Law Society having a knowledgeable in-house factor with considerable practical experience, and I can also see how that might help and protect clients.

The bill provides a way for persons opposed to the appointment of an in-house factor to make their views known. That could be done at the stage when the court is asked to appoint a factor. Any objections could be made to the court, which would have to make the decision. If there are any concerns about the actings or the appointment of the in-house factor appointment, they can be brought to the attention of the accountant or the Law Society. I do not know whether Michael has anything to add to that.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

It is, yes. Initially, everybody should get legal aid advice from a solicitor.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Could I have a two-minute break, convener?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Thank you.

10:38 Meeting suspended.  

10:40 On resuming—  

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I will bring in Michael Paparakis for that question.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I do not agree that the bill lowers the criteria that are required for a person to be appointed as the Accountant of Court. While the drafting of the SLC’s provision has been updated, there was no intention to depart from the recommendation in the SLC report. That recommendation was that the accountant

“should have a knowledge of law and accounts.”

The report states that that does not necessarily mean that they should be required

“to be formally qualified in both, or either”.

The bill provides that the accountant must be

“appropriately qualified or experienced in law and accounting.”

To my mind, that is not a “watering down” of standards, and I consider that the bill gives effect to the SLC recommendation.

Last week, I heard what Patrick Layden had to say to the committee regarding the issue. The point was raised with him in correspondence after the session, and he confirmed to me that the drafting of the bill is consistent with the SLC’s policy recommendations.

Under the bill, the SCTS will determine whether the person who is appointed is the best fit for the role. That seems to be a sensible approach to take, in particular given that the Accountant of Court is an SCTS employee. The SCTS has had the power to appoint an accountant for around 90 years, and I am not aware of any concerns that have been raised about whom it has appointed over that time or the experience or knowledge of those people.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Yes, I think that it would be up to each judicial factor in each case, based on merit.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Yes—I think that the section strikes the right balance between protecting the estate and dealing with serious misconduct. The accountant is under a duty to investigate complaints and reach a decision, and it is only right that, if they conclude that there has been serious misconduct, they report it to the appropriate professional body. The role of the court is to dispose of the matter as it sees fit.

The alternative—of allowing a court to intimate—would mean that time would have to pass before the accountant finds that there has been serious misconduct, and the court process begins to decide the appropriate disposal. It is only right that the professional body is notified of the matter as soon as possible, to allow it time to consider it. In my view, that early notice is an important safeguard for the protection of the estate and possibly other cases in which the judicial factor acts professionally.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Currently, only some kinds of appointments of judicial factors need to be publicised and most respondents to the SLC’s consultation were of the view that some form of publication of appointments was necessary. The SLC consulted with the keeper of the registers and concluded that registration in the register of inhibitions was inappropriate.

I do not know whether Michael Paparakis wants to add anything to that.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

We will talk to stakeholders, and I will then get back to you on that. I appreciate the points that you have made.