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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?

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?

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?

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?

I will continue somewhat in that vein. In response to the committee’s call for views, the Faculty of Advocates said that it would be desirable to give judicial factors the additional power to seek directions from the appointing court. When the Scottish Law Commission gave evidence to the committee, it suggested that the possibility of seeking advice from the Accountant of Court, coupled with the opinion of requesting extra powers from the court under section 11, was all that would be required. Do you agree with the commission’s position, or do you see benefits to what the faculty is proposing? If you wish, you can explain your views with reference to practical examples of relevant situations.

Thank you.

Mr Pattullo, do you have anything to add?

Thank you very much, guests. My question might be on an issue of contention. Under section 4, the main qualification that is required for someone to be appointed as a judicial factor is that the court considers the person to be “suitable” for the role. It is the court’s decision. In response to the committee’s call for views, some respondents, such as Missing People, supported that approach. Others, however, wanted the bill to be more prescriptive. For example, Propertymark wanted professional qualifications to be specified in some circumstances. The committee heard that the Scottish Law Commission’s position is that the court is best placed to decide who is suitable for the role of judicial factor in a particular case. Does anyone on the panel disagree that that is the way forward? Should there be something different in the bill that limits the court’s discretion, rather than leaving it as it stands?

Based on what has been said, it would seem to be an unlikely scenario anyway, but should such a thing happen, is it not already covered?

We have to some degree been talking about judicial factors as if they were all queuing up outside the door, waiting to get a job. The Faculty of Advocates and the Summary Sheriffs Association have both suggested that section 23 be modified to deal with exceptional circumstances in which a judicial factor has acted unreasonably in a situation not covered by section 24 and that they should be found personally liable for legal costs in that circumstance.

The commission was not certain that the suggested modification was the correct approach to take, and it feared that judicial factors would become unduly preoccupied with their own potential risk of personal liability in such circumstances. Does anyone on the panel think that the commission’s position on the issue is the correct one to take, or that that would even be an issue at all?