Committee
Delegated Powers and Law Reform Committee 16 April 2024
16 Apr 2024 · S6 · Delegated Powers and Law Reform Committee
Item of business
Judicial Factors (Scotland) Bill: Stage 1
My question follows on from what you said before. You said that although it does not happen all the time, the Law Society has to step in, or put a judicial factor in place, regrettably often. In the light of the McClure case and others, is there a conflict between the Law Society regulating the work of solicitors and it putting a factor in place to take over when something goes wrong? Was that considered in how the bill was drafted? The bill seeks to consolidate the law, but there are still other pieces of legislation on the statute book that provide the power to appoint a judicial factor in specific circumstances. Was any thought given to bringing all that into this bill? Why did you not do that? As a result of that, are there still situations in which the responsibility for appointing a judicial factor is not as clear as it could be?
In the same item of business
The Convener
SNP
Under agenda item 3, we will take evidence on the Judicial Factors (Scotland) Bill. I welcome Patrick Layden KC TD, who is former lead commissioner at the Sc...
Patrick Layden KC TD (Scottish Law Commission)
Thank you, convener. It is some time since I retired from working as a Scottish Law Commission commissioner. I am privileged to be allowed to appear here to...
The Convener
SNP
Thank you for that, Mr Layden. You have already answered my opening question, but I will ask one thing as an opening for the committee. The Scottish Law Comm...
Patrick Layden
Yes. It is recognisably the same piece of legislation.
Alexander Stewart
Con
Good morning, Mr Layden. I have a number of questions to go through with you. Two organisations that responded to the committee’s consultation—Missing People...
Patrick Layden
The legislation will enable the appointment of a judicial factor whenever that is required. If somebody who has gone missing has enough property to require a...
Alexander Stewart
Con
Yes, thank you. The Charity Law Association has said: “the Bill pays little regard to the role of judicial factors in the charity sector”. How would you ...
Patrick Layden
They have not been overlooked in the sense that the Charities and Trustee Investment (Scotland) Act 2005 expressly provides for the appointment of a judicial...
Alexander Stewart
Con
There is an exception to the requirement to comply with the information-gathering powers under sections 12 and 39 that would enable United Kingdom Government...
Patrick Layden
The rationale is that the Scottish Parliament cannot impose duties on UK Government departments—that is a matter for the Scotland Act 1998. I would not have...
The Convener
SNP
Before we move on, and I hesitate to ask this question, but, particularly in respect of that area, would a section 104 order be made use of?
Patrick Layden
Yes. You will find that that was covered in the commission’s report, for which a draft section 104 order was prepared. No doubt, life will have moved on and ...
The Convener
SNP
We move on to section 4 of the bill, under which the main qualification that is required for appointment as a judicial factor is that the court considers a p...
Patrick Layden
I think that we did, but I am thinking back 14 years, so I will not swear to it. As I said in my opening statement, we are providing a general structure—a ge...
The Convener
SNP
We also received evidence from the Faculty of Procurators of Caithness. In its submission, it states: “We are firmly of the view that whatever other provis...
Patrick Layden
No. The Law Society has a duty to make sure that solicitors act properly in the interests of their clients. As I understand it—the Law Society will be able t...
The Convener
SNP
I have one final question in this area. I assume that you are aware of the situation that arose with McClure Solicitors.
Patrick Layden
No, I am not.
The Convener
SNP
McClure Solicitors was a Greenock-based firm with 14 offices across the UK that went into liquidation in 2021. I have had discussions with a range of constit...
Patrick Layden
That is certainly the kind of case in which an application for the appointment of a judicial factor could competently be made, but I am not in a position to ...
The Convener
SNP
Sure—thank you.
Oliver Mundell (Dumfriesshire) (Con)
Con
My question follows on from what you said before. You said that although it does not happen all the time, the Law Society has to step in, or put a judicial f...
Patrick Layden
In the practical business of setting out legislation, there is always a tension about the best place to put a provision. The bill gives general provision abo...
Oliver Mundell
Con
It certainly started to answer it. For clarity, where you have left provisions untouched in other legislation and have made only minor amendments to referenc...
Patrick Layden
I apologise; I may have missed the answer to the first part of your previous question, which was about the possibility of a conflict of interests in the Soli...
Oliver Mundell
Con
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...
Patrick Layden
Yes, it would. We could have taken those provisions out of other legislation and put them in our bill.
Oliver Mundell
Con
You could have modified them.
Patrick Layden
We might or might not have modified them, because the policy in the 1980 act is for the 1980 act. We would not have changed that without widening our scope q...
Oliver Mundell
Con
That is helpful. You felt that changing those provisions in other legislation was out of scope for this bill, as it would have widened it beyond your interest.