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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 4 May 2021
  6. Current session: 13 May 2021 to 7 November 2025
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Displaying 833 contributions

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Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 30 April 2024

Oliver Mundell

To go back to the previous exchange, I guess that that is where you are looking for some flexibility and, in those sorts of circumstances, some kind of assessment of what is in the person’s or the estate’s best interests. You are looking for that kind of re-evaluation in what you said was a small number of circumstances. Would the best thing be for the process to build in some flexibility to look at best interests?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

I am happy with that, convener. Thank you.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

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?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

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.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

The commission believes the proposed reform of the law of judicial factors to be an ideal area for the commission’s law reform project and extremely worth while. I have listened carefully to what the panellists have said about their experience. Do you agree that it is a worthwhile area of reform? From your previous experience, what practical difference will the new legislation make to you when you operate as a judicial factor?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

I want to move on and ask a new series of questions. In response to the committee’s call for views, the Faculty of Advocates said that it would be desirable to give the judicial factor the additional

“power to seek direction from the appointing court.”

When the commission gave evidence to the committee, it seemed to suggest that there were already sufficient powers for the court in section 11. Can the faculty elaborate on what its proposed power would add to section 11? Do any of the rest of the panel want to comment on the desirability of an extra power for the court to give directions?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

I was just going to ask, for clarity, whether you would be keen to have a section 104 order. That is what I am taking from what you have said.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

I take it, from what you have said, that you would be keen to see a section 104 order.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

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?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

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.