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I hear the point. What I meant was whether there is a practical current example where the issue has come up in relation to judicial factors. Have the Faculty of Advocates and other organisations come across examples that have informed your views, or are they based on the law of trusts?

That is fine. I guess the tricky thing is that the person who was involved in driving the bill forward and in its drafting has said that there is not a problem and that the power is already catered for. I am trying to work out whether that power is needed. If there are no specific examples of where it is needed at the moment, it is harder to push back and say that section 11 does not cut it. That is why I was asking.

Section 12 relates to the information-gathering powers of judicial factors. There is an exception to the requirement to comply for United Kingdom Government ministers and departments, and for bodies exercising reserved functions, such as His Majesty’s Revenue and Customs. A section 104 order might ultimately extend the full scope of the information-gathering powers to UK Government ministers, departments and bodies, but we are not sure whether that will happen yet. If the issue is not addressed via a section 104 order, will that present any problems for you? If so, how significant are those potential problems?

I do not want to put you on the spot, but do you have any specific examples, or could you come back to the committee with them, so that we could go back to the commission on that or review the matter with other witnesses? I am trying to find a specific circumstance in which the additional power would be helpful.

We have talked a bit about the similarity of this legislation and the law around trusts. Section 17 covers the investment power of a judicial factor in respect of the estate. Following the approach in the Trusts and Succession (Scotland) Act 2024, do witnesses think that the bill should include the provision for a judicial factor to choose to invest in ethical, social or governance-tested investments, even if those might not lead to maximum income for the estate?

The centre for Scots law at the University of Aberdeen, Professor Grier at Abertay University and R3 have all said that the fiduciary nature of the judicial factor’s duties needs to be spelled out explicitly in the legislation. The commission seems open to that to some extent, if it is stated as a general principle rather than a detailed treatment of the topic. What does the centre for Scots law think of the commission’s view? What do the rest of the panel think of the views expressed so far on this topic?

My next question also relates to section 12, which states that the information-gathering power is subject to existing data protection legislation. That means that, under section 12, a person can refuse to supply information if to do so would be a breach of the data protection legislation. The Law Society has suggested that that provision in the bill might make life more difficult for judicial factors. Do panel members agree? Is it helpful or unhelpful to judicial factors to emphasise that links exist between the bill and the data protection legislation? For the Law Society, is this not simply a restatement of the law as it stands?

The point being made is pretty clear.

It certainly started to answer it. For clarity, where you have left provisions untouched in other legislation and have made only minor amendments to reference that legislation, was the commission broadly happy with how the provisions in other legislation operate at the moment? There would have been a chance to amend some of those provisions through the bill if there had been a policy reason for doing so.

That is helpful; the drafting probably speaks to the policy intent.

I also want to ask about section 19, which covers the investment power of a judicial factor in respect of the estate. Following the approach in the Trusts and Succession (Scotland) Act 2024, should it be made clear in the bill that a judicial factor could choose environmental, social and governance investments, even if those might not lead to maximum income for the estate? This committee recommended that change in our report on the 2024 act, reflecting the changing thinking on environmental, social and governance issues.