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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 4 April 2025
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Displaying 355 contributions

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Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Foysol Choudhury

The organisation Missing People has expressed concern about what it sees as a lack of clarity associated with the interaction between the Presumption of Death (Scotland) Act 1977 and part 4 of the bill. Does the minister think the relationship between the two pieces of legislation needs to be clarified, either in the text of the bill or in associated guidance?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Foysol Choudhury

Do you think that it is necessary to put a definition either in legislation or in guidance?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Foysol Choudhury

Missing People raised another issue with part 4, specifically with regard to what the procedure would be if the missing person came back and the judicial factory was still on-going. Can the minister confirm whether, under the bill, termination of a judicial factory would be automatic in those circumstances, or whether it would instead, as the committee suspects, require a court’s approval? What is the policy rationale for the approach that the Scottish Government has taken in that respect?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Foysol Choudhury

Minister, you will be glad to know that this is, I think, the last question. The Law Society has highlighted to the committee that it would like powers in addition to those that are provided under the Solicitors (Scotland) Act 1980 to deal with certain issues that can arise with firms taking the form of incorporated practices.

When the Law Society gave evidence on 23 April, it indicated that its preferred legislative vehicle for change was stage 2 amendments to the Regulation of Legal Services (Scotland) Bill. Is it the Scottish Government’s view that that bill is the right place to add the powers that the Law Society seeks?

11:15  

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Foysol Choudhury

Section 23 of the bill sets out the general rule that, if a judicial factor is involved in court proceedings on behalf of the estate, any legal costs that are associated with that will come out of the estate. The Faculty of Advocates and the Sheriffs and Summary Sheriffs Association have both said that section 23 could be modified to deal with exceptional circumstances where a judicial factor had acted unreasonably in a situation that is not covered by section 24 and so should be found personally liable for legal costs.

The SLC and the Law Society, on the other hand, were not certain that the suggested modification was the right approach. The commission, for example, feared that judicial factors would become unduly preoccupied with their risk of personal liability.

Having heard all the views that were expressed to the committee, what is the Scottish Government’s position on the issue? Would the minister be open to amending section 23 of the bill in the way that has been suggested? Can you explain the reasons underpinning your views?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Foysol Choudhury

Under the current law, a judicial factor must find caution—which means to take out a specialist bond from an insurance company—to protect against any wrongdoing, such as theft of the estate, by the factor. In a policy change to the current law, section 5 of the bill abolishes the requirement on a judicial factor to find caution, except in exceptional circumstances. When proposing that new threshold, what investigation did the Scottish Government do of professional indemnity insurance or of any other possible alternatives to bonds of caution?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Foysol Choudhury

The committee heard evidence from several legal stakeholders that the proposed threshold of “exceptional circumstances” may be set too high. It therefore might not result in caution being required where a layperson is being appointed and specific professional indemnity insurance might not be an adequate substitute for professionals. On the other hand, Missing People is concerned about the costs of caution and prefers the existing threshold. Having heard all the views expressed to the committee about that issue, are you still convinced that “exceptional circumstances” is the right threshold? If not, what policy alternatives would you propose, and why?

Citizen Participation and Public Petitions Committee

Continued Petitions

Meeting date: 1 May 2024

Foysol Choudhury

That was a powerful presentation from Rhoda Grant. Can we ask the Scottish Government whether it will work with local authorities, because so many hours are involved? Could we suggest a visit to the area by the committee?

Citizen Participation and Public Petitions Committee

Continued Petitions

Meeting date: 1 May 2024

Foysol Choudhury

If we close the petitions, we will be saying to the Government that the matter is closed. We will not be giving the Government the option to look at the possibility of working with the council or to come up with other solutions.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 30 April 2024

Foysol Choudhury

Regarding the costs that the bill might mean for the SCTS, paragraphs 24 and 25 of the financial memorandum say that adjustments to the SCTS’s new case management system might be required because of the bill. Can you provide any more information on what would be involved and, in particular, on what cost you think will be incurred? Are there any other costs that you wish to highlight to the committee or that give cause for concern?