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Chamber and committees

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 2 May 2025
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Displaying 1386 contributions

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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.

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.