Chamber and committees

When the Scottish Law Commission spoke to the committee two weeks ago, there was some discussion of the requirement on the accountant, under section 38, to refer the judicial factor to their professional body in certain circumstances.

Section 38 appears to bypass the Scottish Legal Complaints Commission, which is the usual gatekeeper for complaints. Also, in respect of a referral to the Law Society, it may apply a higher threshold for referral than the main threshold appearing in the general legislation on regulation of the legal profession.

For the benefit of the committee, can you outline the approach that you take now for solicitors? To which body—if any—do you refer a solicitor at present and in what circumstances would you make that referral? Does the wording of section 38 give you any practical or policy concerns?

Tim Barraclough, did you have something to say on that?

Thank you for that, because it broadens out the discussion. Are family members regularly considered, or considered enough, by the court to be suitable persons? Could it be that, sometimes, the court might think that there are potential or perceived conflicts of interest among family members that might mean that appointing an independent person might be the best route to go down?

Thank you for those responses, because they are bringing something to life. It is very easy to fall into legal speak.

Section 4 of the bill sets out the qualifications that are required of a judicial factor, the main one being that the court decides that the person is “suitable” for that role. In Missing People’s response to the committee’s call for views, you supported the general idea that suitability for appointment does not come down to specific qualifications or other criteria. You said that families have to deal with practical concerns. For the benefit of the record, what barriers are there to a family member being appointed under section 4, and what steps can policy makers take to remove such barriers?

The then Accountant of Court expressed concern about whether accountants’ professional indemnity insurance was an adequate substitute for a specialist bond of caution, saying that it might not cover such elements as embezzlement. Do you think that the Accountant of Court’s concerns have been resolved during the policy development process? Can you offer any information on the scope of contemporary professional indemnity insurance?

Thank you. Does section 5, as it stands, cover that successfully?

Thank you for that. You are happy with the situation as it stands just now anyway, and it is not something that you have to deal with very often.

It might therefore be a wee bit over the score to change it for the sake of it anyway.

The committee has heard evidence from the legal profession suggesting that the proposed threshold for requiring caution is now set too high, and that alternative forms of security to a bond of caution should be considered where those are required. Do you have views on that?

That makes sense.

As things stand, under current law, a judicial factor has to find caution, which is a specialist bond from an insurance company to protect against wrongdoing by the factor and specifically theft from the estate, which you mentioned. Under section 5, there is a policy change to abolish the requirement on a judicial factor to find caution, except in “exceptional circumstances”. The committee has been looking into that. Do you think that a family member of a missing person should also be required to take out a bond of caution?