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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 August 2025
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Displaying 502 contributions

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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.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

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?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

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?

10:30  

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

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?

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 23 April 2024

Oliver Mundell

The point being made is pretty clear.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

That was helpful. There are provisions for appointing judicial factors in other legislation. The commission has looked at those, and it is broadly happy with them. Is that correct? Obviously, the bill would have been a chance to change those provisions.

Delegated Powers and Law Reform Committee

Judicial Factors (Scotland) Bill: Stage 1

Meeting date: 16 April 2024

Oliver Mundell

I think that it would probably be in section 19, but that would be up to drafting colleagues—and probably in section 17—