Seòmar agus comataidhean

In its stage 1 report, the committee considered registration of notices of appointment of judicial factors in the register of inhibitions, under section 6, and the alternative of creating a stand-alone register of judicial factories.

Amendment 8 gives effect to the committee’s recommendation that the bill should require the Scottish ministers to periodically review the continuing appropriateness of registration of appointments of judicial factors in the register of inhibitions, and it enables the Scottish ministers to give effect to any findings of such reviews. Any regulations under that provision would be subject to the affirmative procedure.

I move amendment 8.

These are minor and technical amendments.

Amendments 14 and 15 are technical amendments that address a point that was raised by the centre for Scots law at the University of Aberdeen in its written evidence. Section 10(7) defines “factory functions” for the purposes of sections 10 and 11, but there is no reference to the “factory functions” as such in section 11. Rather, section 11 makes reference to “standard powers” and

“functions set out in sections 12 to 19”,

both of which fall within the definition of “factory functions”. Amendments 14 and 15 make minor adjustments to correct that.

The definition of “financial assets” in section 13(4) was raised as being an issue by the centre for Scots law and by the Law Society of Scotland. In particular, the Law Society was concerned about the practical effect of trying to decide whether a particular financial asset was of a similar nature to cash accounts or share certificates.

Given that the definition was found to be unhelpful, I have lodged amendment 17 to leave the term “financial assets” undefined. The effect of that is that those words will now be given their ordinary natural meaning.

Section 33 allows for termination of a judicial factory when there are insufficient funds

“to meet the expenses of ...

(a) any formulation by the judicial factor of a scheme”

for distribution of the estate

“(b) the seeking of approval of such a scheme, and

(c) distribution of the factory estate in accordance with such a scheme.”

In written evidence, it was queried whether section 33(1) should have “or” instead of “and” between paragraphs (b) and (c). The issue is whether section 33 should apply only when all three conditions are satisfied or whether it should also apply when only one or two conditions are met. It is considered that there may be circumstances when, for example, there are sufficient funds to formulate a scheme but insufficient funds to seek approval and to distribute the estate. As such, there is value in having greater flexibility, with section 33 covering a wider range of circumstances, and amendment 30 adjusts section 33 accordingly.

On amendment 31, the committee asked me to consider whether the relationship between section 34 and section 38 needs further clarification, and I have given that some thought. Although I do not think that anything should be added to the bill to clarify the relationship between the two provisions, I consider that section 34 can be usefully amended to make it clearer to users of the legislation that it is not only any criminal liability incurred by the judicial factor in the course of their actings as judicial factor that continues after discharge, but also any civil liability connected to the relevant acts or omissions. Amendment 31 makes that change.

Section 43 allows persons with an interest in the factory estate to inspect or obtain copies of certain documents relating to the factory. Those documents are listed in section 43(4). The Law Society has highlighted that the inventory is not specified in section 43(4) and that that differs from the SLC drafting, which refers to the

“inventory, management plan, annual accounts and audit report”

as being open to inspection. The inventory was unintentionally omitted from the bill as introduced, and amendment 37 corrects that. It also adds to the list of documents available for inspection the balance sheet that must be prepared when a replacement judicial factor is appointed.

The word “section” is repeated in section 45(2)(a), and amendment 38 corrects that error.

Finally, amendments 40 to 42 make consequential amendments to the Bankruptcy (Scotland) Act 2016, following written evidence from the centre for Scots law.

I ask members to support the amendments in the group.

I move amendment 14.

Amendment 14 agreed to.

Amendment 15 moved—[Siobhian Brown]—and agreed to.

Section 10, as amended, agreed to.

Schedule 1 agreed to.

Section 11 agreed to.

Section 12—Power of judicial factor to require information

Under section 38(4)(b), if the judicial factor is a member of any professional body, the Accountant of Court is required to report to that professional body any serious misconduct or material failure by the judicial factor. The committee considered that provision in its stage 1 report, and I indicated that I would bring forward an amendment so that the bill better reflects how complaints against members of certain professional bodies are currently handled.

Amendments 34 and 35 make clear that, if arrangements are in place for a body other than the professional body to deal with complaints, the accountant must report the serious misconduct or material failure to that other body. For example, if the judicial factor is a solicitor, the effect of the amendment is to require the accountant’s referral to be made to the Scottish Legal Complaints Commission rather than the Law Society of Scotland.

I move amendment 34.

Section 9(5) allows the Accountant of Court to fix a different rate of remuneration for

“a particular interim judicial factor”.

In its written evidence, the Faculty of Advocates queried why that discretion was restricted to interim judicial factors and did not apply to permanent judicial factors. The policy behind section 9 is to provide flexibility for the fixing of rates of remuneration to allow for variations in particular circumstances or when unusual duties are imposed on a particular judicial factor. Having considered the faculty’s evidence, I agree that the discretion conferred by the bill in that respect should be extended to apply to permanent judicial factors. That is what amendment 11 provides for.

I move amendment 11.

Amendment 11 agreed to.

Section 9, as amended, agreed to.

After section 9

Sections 12 and 39 of the bill confer powers on judicial factors and on the Accountant of Court to request information in relation to factory estates from persons and bodies. That might include, for example, requests being made to banks for financial information relating to an estate.

During stage 1, some stakeholders expressed concern regarding the provisions in sections 12(7) and 39(6), which set out that sections 12 and 39 do not authorise disclosures that contravene data protection legislation. The concerns were echoed by the committee, with the committee recommending that the Scottish Government consider clarifying the provisions further in the bill or removing them.

In the light of those concerns, I have given further consideration to the provisions and have lodged amendments 16 and 36, which adjust sections 12(7) and 39(6) to provide further clarification on the interplay with data protection legislation. The amendments make clear that, where the holder of information is considering whether a disclosure would contravene data protection legislation, they must take into account the provisions in the bill that authorise or require disclosure.

I move amendment 16.

Amendment 16 agreed to.

Section 12, as amended, agreed to.

Section 13—Ingathering

Amendment 17 moved—[Siobhian Brown]—and agreed to.

Section 13, as amended, agreed to.

Sections 14 to 25 agreed to.

Section 26—Validity of certain transactions by judicial factor appointed on trust estate

Amendment 18 moved—[Siobhian Brown]—and agreed to.

Section 26, as amended, agreed to.

Section 27—Approval of judicial factor’s scheme for distribution of factory estate

Amendments 19 to 21 moved—[Siobhian Brown]—and agreed to.

Thank you, convener, and good morning.

I welcome the opportunity to appear before the committee to give evidence on Scotland’s compliance with the Aarhus convention. As members of the committee will know, the convention consists of three pillars: access to environmental information for any citizen; the right to public participation in decision making; and access to justice in environmental matters. My portfolio responsibilities relate to the access to justice pillar.

We are all very appreciative of the detailed work that the ACCC undertook to ensure compliance with this important convention. It is a complex and cross-cutting area of work that touches on a number of different policy areas. Enormous strides have been made towards compliance under the current Government. Despite that, at a meeting of the parties in October 2021, the ACCC found both Scotland and the rest of the UK as a whole to be non-compliant. The ACCC had previously welcomed Scotland’s significant progress in 2018, and work is on-going to strengthen compliance in the areas of concern that the ACCC identified in its most recent decision. We are optimistic that further progress will be recognised, following the submission of our update later this month.

Officials have continued to work with our counterparts in the Department for Environment, Food and Rural Affairs and in both the Welsh Parliament and the Northern Ireland Assembly to provide a response to the ACCC that addresses the concerns that have been raised.

I am happy to answer questions, convener.

Sure. Several issues were raised in the report, and I can highlight probably four on which action has been taken since it was published.

The first issue is cost protection on appeal. Under a rule change enacted in June 2024, reclaiming is progressed in the same manner, regardless of whether it is a petitioner or the respondent who is appealing the original decision. The rule change clarifies that court fees are included in the cost cap and also addresses the issue that was raised by the ACCC.

Another issue related to protective expenses orders. A rule change was enacted, prompting a petitioner to request confidentiality when they lodge a motion requesting a protective expenses order, and in the event of a hearing, it would be heard in chambers, from which the public would be excluded. A rule change was also enacted in June 2024 with regard to interveners. The Scottish Government has taken action to clarify that a potential litigant’s exposure to an intervener’s costs is likely to be nil, providing that they act reasonably.

In relation to court fees, following a public consultation in 2022, an exemption from such fees was introduced for Aarhus cases raised in the Court of Session. Therefore, the ACCC’s concern over whether court fees would be included in cost caps has become redundant, which has been welcomed by all stakeholders and environmental NGOs.

Several other issues were raised for proposed action, but I do not know whether you want me to cover all of them, too, or whether you are happy with that progress.

Yes. Legal aid reform is simply one element of access to justice, together with court fees and protective expenses orders.

As I have said on record, it has not been possible thus far to introduce a bill to enact any change in this parliamentary session. However, that does not prevent us from making further reforms that we can build on to simplify the legal aid system and reform fees within the current legislative framework, perhaps through the use of secondary legislation.

I am confident that we can still comply with the convention without full legal aid reform.

I will bring in Denise, but my understanding is that, even if there were to be reforms to regulation 15, we would have to carefully consider the knock-on effects on different portfolio areas.

We are looking at starting the engagement process towards the end of this year and the beginning of next year. The timescale would be to put in place secondary legislation before the end of the current session of Parliament, so there will be some reform of legal aid.