Chamber and committees

I would like to respond to that point. That issue is one that has been raised. Legal aid is demand led. Last year, it had a budget of more than £141 million. If, during the course of a year, the level of legal aid goes over the budgeted level because of demand, the Scottish Government will have to pay for that.

I know that the Scottish Legal Aid Board is currently looking geographically at the areas that need legal aid and at how we can solve that. We are working with SLAB and the legal profession on how we can improve access to justice through legal aid.

I do not have that exact price at the moment. It would be useful to have the data that allows for the fee to be broken down in that form, but the cases differ depending on how much of the court’s time is used, so it is unique to each individual case. Many cases will settle without a hearing. Accordingly, the fee might be low. However, some cases might involve lengthy hearings in the Court of Session and multiple motions, which might make them more expensive. Therefore, it is very difficult to pinpoint an average cost.

I will bring in Walter Drummond-Murray on that, but it is my understanding that our court fees are lower than those in England and Wales. I note that, in England and Wales, the fee for a divorce is £593, but, in Scotland, it is only £150. That is a comparison for one of the fees.

Walter, do you have any further information?

As I said previously, it would be up to the Scottish Courts and Tribunals Service to determine that, if the funding of £4 million a year was not raised on its behalf. As I set out in my letter to the committee, the expansion of the civil online service in the sheriff court is one example that it has been mentioned might have to be curtailed. Beyond all the examples that I have mentioned today and in my letter, there is simply a risk of delay and detriment to the court system.

Will the member take an intervention?

First, given the importance of the UK budget, and the consequentials to the Scottish Government, to delivering for the people of Scotland, whom we all represent, it is really disappointing that only three Labour MSPs are in attendance for this debate.

Secondly, I note that the Labour amendment would remove mention of urging the UK Government to reverse cuts to the winter fuel payment and to remove the two-child limit on benefits. Does Mr Johnson not agree that the UK Government should be doing those things to protect the people of Scotland, whom we all represent?

I thank all members for their contributions to this afternoon’s debate. I repeat my thanks to the Scottish Law Commission for the work that has gone into this project and to the Delegated Powers and Law Reform Committee for its work in gathering and responding to evidence on the bill.

A few members who are in the chamber today might remember last year’s debate on reform of trusts law, the principal statute of which dates back to 1921. The office of judicial factor has an equally long history in Scots law, as Stuart McMillan mentioned in his speech, and the most recent statutes that are dedicated to the office date from 1849 to 1889. This year’s legislative programme includes a bill that will implement the SLC’s recommendation on the termination of leases and notices to quit; one of the principal pieces of statute in that area dates from 1756, although it was re-enacted as recently as 1913.

Progress on updating our laws is clearly being made. Really important work is going on in the Scottish Government and in Parliament, and, as Maggie Chapman highlighted, sometimes that is not recognised.

If Parliament passes the bill, a modern and broad framework that sets out the essential features of the role and supervision of judicial factor will be put in place. That will bring clarity, accessibility and efficiency to this area of law, which we hope will mean that the solution of appointing a judicial factor is used in a wider range of circumstances.

The SLC’s recommendations achieve the aim of setting out a modern framework for the appointment and supervision of judicial factors. The committee and members who are here today have identified points of detail where they consider that improvements can be made to the bill. I will take away those points and reflect on them; I will also come to some of them later in my speech.

I am willing to listen to and, where I can, work with members of all parties on the bill. Despite the points of difference, I am pleased to hear from members across the chamber that there is broad support for the general principles of the bill.

I will use what time I have left to discuss issues that have been raised this afternoon, of which there are quite a few.

First, I come to the issue of missing people. Most members have commented on that, due to the compelling evidence that the committee took. I understand that missing persons is an emotive issue, but we do not create legislation in a vacuum. We must take into account the rules of statutory interpretation. As I have said, adding something to the bill to make it clear that a judicial factor can be appointed to manage the estate of a missing person could mean that the court does not agree to appoint a judicial factor in other circumstances. That risk is considered to be unnecessary, but I am listening to members, and my door is always open if they wish to discuss that further with me.

I will move on to the issue of charities, which Jeremy Balfour raised. Judicial factors can be appointed in a wide range of circumstances, and some stakeholders have suggested possible amendments with regard to circumstances in which a judicial factor is appointed to manage the estate of a charity. I am exploring those suggestions and, once engagement with the relevant stakeholders is finished, and ahead of stage 2 proceedings, I will write to the committee to confirm my intentions.

I will write to Martin Whitfield in response to his point about the Children (Scotland) Act 1995.

The issue of section 104 orders and communication with the UK Government was raised. Most of the bill’s provisions will apply only in Scotland; however, there are certain provisions that I think should apply in the rest of the UK as well. The aim is to ensure that a judicial factor that is appointed to manage an estate is able to exercise their functions in relation to the whole of the estate, regardless of where the property is in the United Kingdom. Intergovernmental arrangements are in place to manage the delivery of orders that require to be made under section 104 of the Scotland Act 1998, and officials are in discussion with the UK Government about seeking a section 104 order for the bill. So far, those discussions have been positive, and that work will continue as the bill progresses. I will keep the Parliament updated on progress.

Katy Clark and Stuart McMillan highlighted the McClure’s issue. Under the Solicitors (Scotland) Act 1980, the Law Society of Scotland can apply to the court for an appointment of a judicial factor to a solicitor firm in certain circumstances. Such a judicial factor does not carry out any legal work in the way that an incoming firm is able to do in many cases, and it might be preferable for another firm to take over the business of a failing firm rather than to put in place a judicial factor. Ultimately, the Law Society of Scotland, as the regulator, would generally be best placed to decide whether to seek appointment of a judicial factor to a solicitor firm.

The Scottish Government has taken proactive steps to militate against a situation like that of McClure’s happening in the future. Members will be aware of my other bill that is proceeding through Parliament—the Regulation of Legal Services (Scotland) Bill—which will introduce the authorisation of legal businesses, to bring benefits such as greater consistency in regulating legal firms, and to enable the Law Society of Scotland, as the regulator, to identify and address deficiencies early.

Tim Eagle brought up a point that the Faculty of Procurators of Caithness highlighted to the committee, and I welcome the committee’s view that the system is a sensible approach to the complaints procedure. I have listened to what was said about the accessibility of the complaints procedure, and officials will work with SCTS and the Accountant of Court to make sure that information on how to make a complaint about a judicial factor is clearly accessible.

Katy Clark mentioned royal assent. I do not have any information that the bill will not get royal consent, but I will keep her updated if that is a problem moving forwards. She also mentioned the Law Society of Scotland briefing that was sent to members, which raised quite a few technical aspects of the bill. My officials reached out to the Law Society when we received the briefing, and we are meeting it next week to discuss and go through that.

I believe that today’s debate reinforces the impression that there is broad support for the bill and its policy aims. Parliament has an opportunity to look at and consider an area of law that does not usually rise to prominence but is of vital importance to those who need it and who rely on it, whether to distribute a deceased person’s estate or to manage a missing person’s property. As a whole, the bill seeks to bring the law up to date and takes forward all the substantive recommendations for reform that were proposed by the Scottish Law Commission.

I thank the members who have contributed to today’s debate, and I welcome their broad support for the general principles of the bill. As the debate has indicated, however, there are matters to consider and differences of view on points of detail. I look forward to working with the committee and members from across the chamber to consider those issues in the coming weeks.

Such an amendment, in my view, is not only unnecessary but could risk undermining the wider policy regarding the circumstances in which the judicial factor may be appointed. As I said, section 3 is deliberately widely drafted and already allows for a judicial factor to be appointed to the estate of a missing person. Amendments that specifically relate to missing people could cast doubt on the generality of section 3 and prevent the appointment of a judicial factor in other circumstances.

The committee raised a number of other matters in its stage 1 report, some of which I want to discuss. First, it might be necessary for a factor to seek information from others, such as banks and other financial institutions, about the property that is being managed. Section 12 confers a power on judicial factors “to require information”, including provisions on data protection that the committee and a number of stakeholders have questioned. Making it clear that data protection legislation is not overridden is not unusual in bills and can be useful in providing clarity. However, I have listened carefully and will lodge amendments to address the issues that were raised.

At present, the appointments of only some judicial factors are publicised. Publication increases creditor protection and helps to reduce the risk of a third party unknowingly purchasing property in respect of which a judicial factor has been appointed. The bill provides that every appointment of a judicial factor must be recorded in the register of inhibitions, which is a searchable database that the Registers of Scotland oversees.

Those who gave evidence were of the general view that publication of appointments is desirable but questioned whether a new bespoke register was needed. The committee recommended that the bill should be “flexible enough” to allow for a change in the register if circumstances warrant that. I welcome the committee’s recognition of the importance of registration and will lodge an amendment at stage 2 that gives effect to its recommendation.

I will also speak with the Registers of Scotland and the Law Society of Scotland to consider what can be done to raise awareness of the use of the register in relation to judicial factories, so that people know that property is being managed by a judicial factor.

Separately, some stakeholders and the committee raised the need to make clear in the bill the fiduciary character of a judicial factor’s role. Reading the bill as a whole, I think that it is clear that the nature of the judicial factor’s role is fiduciary, although that term is not used. The bill requires judicial factors

“to hold, manage, administer and protect the factory estate for the benefit of persons with an interest in the estate ... to exercise care, prudence and diligence”

and to

“take professional advice when appropriate.”

However, I think that something can be added to the explanatory notes to make that point clearer to users of the legislation.

Finally, the Accountant of Court, who supervises the work of judicial factors, is appointed and employed by the Scottish Courts and Tribunals Service. The bill sets out that the accountant should be

“appropriately qualified or experienced in law and accounting.”

There is no requirement that the accountant be formally qualified in both disciplines or in either; that is a restatement of the current legal position. It is for the Scottish Courts and Tribunals Service to determine whether the person appointed is the best fit for the role. With an eye to the flexibility of the legislation, the Delegated Powers and Law Reform Committee considered that it would be beneficial for the accountant’s qualifications to be made subject to review and amendment by regulation, if necessary. The committee made recommendations to that effect. I recognise the flexibility that that brings to the bill, and I will lodge an appropriate amendment at stage 2.

I put on record my thanks to the Scottish Law Commission for its work on this reform project. I thank those who gave evidence, and I also thank the members of and clerks to the Delegated Powers and Law Reform Committee for their work in scrutinising the bill and for the committee’s stage 1 report.

I move,

That the Parliament agrees to the general principles of the Judicial Factors (Scotland) Bill.

I will come on to some of the issues that have been raised later in my speech.

I heard concerns about these issues first hand when I attended meetings of the retail industry leadership group on 14 March and the Scottish Retail Consortium on 19 March. At those meetings, I heard about the work that retailers are doing to cope with these issues, including introducing extra security measures and support for staff, as well as their views on what is driving the upward trend.

I appreciate Ms Dowey’s comments on her previous career and her experience of violence in the retail sector in a past life. I have also personally experienced it.

Although the increase cannot be entirely attributed to the cost of living, Police Scotland has been clear with me that that is undoubtedly a major driver. These incidents are deeply concerning, which is why I urge all retailers to keep reporting crimes. I appreciate that some will not, but I will come later in my speech to a Police Scotland initiative that could encourage them to do so.

Each crime report aids our collective understanding of who is doing this and why, and means that police officers may also have intelligence that they can use to catch the perpetrators. Policing in Scotland continues to be a priority for the Scottish Government. Our budget for 2024-25 includes record total police funding of £1.55 billion, which is an increase of £92.7 million on the previous year, despite exceptionally difficult financial circumstances due to the UK Government’s austerity.

I believe—and we discussed this in a debate last week—that there is an issue in local authorities with collaborative working with the police. I had a meeting last week with my local police and they told me that they could identify all the shoplifters in Ayr town centre and knew how to get in touch with them. There has to be a collaborative approach between local authorities, because it is not just up to the police. There has to be collaborative working between the council, antisocial behaviour services and the police.

I return to Police Scotland funding. That funding will allow the chief constable to deliver on her commitment to strengthen the force through her plans for a revised model of policing, including enabling the service to restart recruitment and increase officer numbers. I note that a few members have called for more police. I am glad to report that Police Scotland has welcomed more than 690 new officers since March and more than 1,280 new recruits since the beginning of 2023. Further intakes are planned throughout this year, with Police Scotland set to take on more recruits this year than at any time since 2013. Police Scotland described the number of candidates and applicants looking to join up as really positive. I hope that members welcome that.

I am encouraged by the approach that Police Scotland is taking to tackling shoplifting and addressing these recent trends. Central to that work is the innovative Scottish partnership against acquisitive crime strategy, also known as SPAACE, which is led by Police Scotland. It works with retailers and other organisations, including Retailers Against Crime and Neighbourhood Watch Scotland. Its focus is on prevention, deterrence and, where appropriate, enforcement.

I note that the motion raises a point about the protection of retail workers in the South Scotland region. Officers have engaged directly with retailers of various sizes across the whole country on how to minimise opportunities for this type of crime, protect individuals and businesses and deliver clear advice and guidance for prevention. I ask that retailers take advantage of Police Scotland’s advice in this area. Although the problem must also be tackled through enforcement, ensuring that premises are not an easy target for shoplifters is important.

The Scottish Government underlines its support for the SPAACE approach in our programme for government, which was published earlier this month, and I would like to draw members’ attention to a specific pilot project that Police Scotland has initiated in Fife. Statistics on the number of retailers who are not willing to report crime were given, and work on that is being undertaken. Police Scotland, together with partners and information technology providers—