Meeting of the Parliament 10 December 2024
I thank members for their contributions to this short debate. I hope that it is clear from the debate that we listened to what was said by stakeholders, by the committee and by MSPs during the earlier stages. The changes reflect those views and, to my mind, they have improved the bill.
If the bill is passed today, it will put in place a modern and broad framework for judicial factors that sets out the essential features of the office and how it is supervised. That will bring clarity, accessibility and efficiency to the area, which we hope will mean that the option to appoint a judicial factor is utilised in a wider range of circumstances where it is not currently used because of uncertainty, complexity and cost.
I was happy to lodge amendments at stage 2 to implement almost all the committee’s recommendations. I will briefly touch on two issues in relation to missing persons and charities.
The committee recommended that a reference to missing people be added to the bill to make it clear that it may be used by those who are seeking to manage the estate of a missing person. The bill was deliberately drafted widely and it already allowed a judicial factor to be appointed in a wide range of circumstances, including over the estates of missing persons. However, having considered the strength of feeling across the Parliament at stage 1, I lodged an amendment that reflected the recommendation while ensuring that the wider policy in the bill would not be undermined.
The committee asked me to consider suggestions made by stakeholders in relation to the management of charity property by judicial factors. Before a judicial factor is appointed, and also at stages of a judicial factory, the bill requires intimation of documents to every person with an interest in the estate. The bill now requires that, when the estate is that of a charity, in addition to the standard requirement to intimate to persons with an interest in the estate, intimation is given to the Office of the Scottish Charity Regulator, and a notification is to be given to the general public by way of an advertisement.
The court and the accountant were also given powers to dispense with some of the intimation requirements and the notification requirements to the public where circumstances justify that. Overall, the bill is now better able to respond to cases involving charity property.
I will touch on two of the points that Michael Marra raised and that the Law Society of Scotland raised in yesterday’s briefing, regarding adults with incapacity and how that issue remains outside the judicial factors regime. The current judicial factors legislation, which the bill repeals, applies not only to so-called judicial factors but to other types of administrator, although guardians appointed under the Adults with Incapacity (Scotland) Act 2000 are expressly excepted. On the other hand, the bill applies only to judicial factors so called, whether they are appointed under the bill or other legislation. Section 47 of the bill makes that clear. Accordingly, the guardians appointed under the Adults with Incapacity (Scotland) Act 2000 remain outside the judicial factors regime.
The member raised the point about how to circumvent the safeguards for incapable adults, which is set out in the 2000 act and relates to the Law Society. Similar to the 2000 act, the bill includes a number of protections. First, anyone with an interest is required to be notified of an application for the appointment of a judicial factor and will therefore have an opportunity to present their position to the court if they wish. Secondly, all judicial factors are supervised by the Accountant of Court, who has powers to issue directions to judicial factors and to investigate any concerns. The person appointed as the accountant also holds the appointment as a public guardian, which means that judicial factors and guardians are, in effect, supervised by the same person. Lastly, judicial factors have to account for their dealings with an estate, and they are required to regularly prepare accounts, which are audited by the accountant, and are held to be liable for any misdeeds. I consider that the safeguards in the bill are sufficient.
If the bill is passed today—I hope that it will be—I am clear that there is still work to be done before the provisions can be commenced. Not least, that work will involve working with the charity Missing People and others to prepare guidance for the families of persons considered missing who are applying for the appointment of a judicial factor.
Members will also be aware that I am in discussion with the UK Government seeking a Scotland Act order to extend certain provisions in the bill to allow judicial factors to manage properties in other parts of the United Kingdom. That work is progressing, and I will keep Parliament updated on future developments. Given the nature of the reforms that are proposed by the bill to the court process and the supervision of judicial factors by the accountant on behalf of the court, the bill will also require new and amended court rules. I am committed to that, and I will ensure that all necessary work to be done by the Scottish Government is done swiftly.
I thank the members who have contributed to today’s debate, the committee and its clerks and those who gave evidence to help to improve the bill. I thank my officials, who have put a lot of work into the passage of the bill, and, finally, the former commissioner to the Scottish Law Commission, Patrick Layden.
I commend the motion in my name.