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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 20 July 2025
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Displaying 2148 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 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

I do not think that the bill needs any particular statement with regard to missing persons, because we want judicial factors to cover all aspects and not just one specific aspect. However, as I said in my opening remarks, I am working with the charity Missing People on how we can strengthen the guidance for people in such situations.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I appreciate that. We will continue to work with the charity and I am open to doing so in the future. If there is anything that we can bring in to give some comfort to Missing People in particular, we will consider it.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

Not at this stage.

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, who has the history of this. However, my understanding is that it was not thought necessary. Even if the legislation on data protection is updated, it will always be updated by the UK Government on the Information Commissioner’s Office website, so it will keep in step with things.

Michael, do you want to add anything?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I will hand over to Michael Paparakis, who has the technical knowledge to be able to answer that question.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 7 May 2024

Siobhian Brown

I do not consider the threshold to be too high; I believe that it strikes the right balance between the incurring of unnecessary costs and protecting an estate from the improper actings of a judicial factor.

The evidence indicates that bonds of caution can be difficult to obtain and can cost thousands of pounds each year, which is paid for by the estate. That can be prohibitive in circumstances in which a family member is appointed to administer the estate of a missing person and can be completely unnecessary where indemnity insurance covers the judicial factor’s actings.

Most current judicial factors are professionals with indemnity insurance, which, as the committee has heard, can cover their actings as a judicial factor. If a non-professional judicial factor is appointed, the court will have the discretion to order caution. The bill contains safeguards in relation to that, including the fact that all judicial factors are supervised by the accountant and that they must submit an inventory of the estate property and a management plan and must provide accounts for regular audit.

Any person who has concerns about a judicial factor can complain to the accountant, who is required to investigate and has the power to direct a judicial factor to do something. The accountant must also report any serious misconduct to the court.