Chamber and committees

As we all know, there will be a wee bit of to-ing and fro-ing in some of the sections, because they cross over each other quite a bit.

On qualifications for appointment as a judicial factor, when the Scottish Law Commission appeared before us on 16 April, it said that the court was best placed to decide who was suitable for the role. It highlighted that in the case of a farming business where two farmers fell out, for example, the person best placed to be appointed as a factor would be another farmer, because of their inside knowledge.

Section 4 of the bill sets out the qualifications required to be a judicial factor on that basis, with the main qualification being that the court decides who is most suitable for the role. The Scottish Law Commission and others, including the Law Society and Missing People, have said that the court is best placed to decide who is suitable in individual cases. Propertymark, on the other hand, wants the bill to be more prescriptive in its requirements, including by specifying certain professional qualifications. Having considered all the views that were expressed to the committee during stage 1 scrutiny, which policy decision out of those does the minister prefer? If you support any changes to section 4, will you please give us an idea of those?

Okay. Are you aware of the concerns that have been raised? Have you had a look at them?

This area can be complex for people who do not have much training, if any. What do you make of the view that the interrelationship between the two provisions in sections 34 and 38 needs to be explained more clearly in the text of the bill, for everyone’s benefit?

That is perfectly reasonable. However, you mentioned that the explanatory notes could perhaps be strengthened to give people a clearer idea of the situation, particularly those who are very concerned about the outcomes that may apply in their own cases. Could that be looked into?

On the back of that, when the Faculty of Advocates gave evidence to us on 23 April, it supported the current approach to appointments. When a judicial factor is appointed by the court in relation to a solicitor or a firm of solicitors under the Solicitors (Scotland) Act 1980, it is typically the Law Society’s in-house judicial factor who is appointed. However, the Faculty of Procurators of Caithness has suggested that the current system does not work and that the judicial factor in those types of cases should always be wholly independent of the Law Society. On the other hand, the Law Society, the Law Commission and the Faculty of Advocates expressed their support for the present system.

Having considered all the submissions that were put to the committee on the issue, what policy position does the Scottish Government prefer, and would you consider a specific statement in section 4 of the bill on the use of the Law Society’s in-house judicial factor?

I have a question on financial eligibility criteria and how they are applied between those whose finances would be assessed and the person applying to be the judicial factor.

Missing People’s main policy concern regarding section 4 is practical: what will an application cost and will families be able to afford it? Can the minister offer families of people who go missing in Scotland assurances about the potential availability of legal aid and say whether financial eligibility criteria will be applied when considering legal aid applications? Would the resources of the applicant be assessed, or would it be those of the missing person?

Thank you, minister, for the replies that we have been getting—I am sure that they will be extremely helpful.

There is a relationship between section 34 of the bill, on discharge, and section 38, on investigations. The committee has been considering the interrelationship of those two sections. Section 34 says that discharge usually ends a factor’s liability, and section 38 covers the investigatory powers of the Accountant of Court and the court.

Can the minister confirm what the position is if a factor is discharged under section 34, but misconduct subsequently comes to light? What is the policy justification for the approach that would be taken in that instance?

Thank you very much for that.

It would be the applicant—right. Legal aid is available for people in those circumstances, then.

Okay. Staying on section 4, the Accountant of Court told us that there were other checks that she could potentially do on an applicant’s suitability when they apply to be a judicial factor. That might include checking the applicant’s credit status and whether they had been made bankrupt at any time. She said that the applicant could also be required to flag if their financial circumstances change after they have been appointed.

Did the Scottish Government give any consideration to putting those additional checks and safeguards in the bill? What do you regard as the potential advantages or disadvantages of including such requirements?