The Official Report is a written record of public meetings of the Parliament and committees.
All Official Reports of meetings in the Debating Chamber of the Scottish Parliament.
All Official Reports of public meetings of committees.
Displaying 548 contributions
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
I think that it was the Law Society. The matter was raised by a lady who has been there for a very long time and is its in-house judicial factor. She therefore has a lot of experience of working with such legislation, and she said that it is not something that most people know about. They hear the term “judicial factor”, but they are not clear about what that is. They do not understand that the person who is appointed as the judicial factor, in effect, acts as if they are the person, so there is already confusion. She is concerned that the bill’s reference to the Data Protection Act 2018 would lead to people defaulting to using that as a reason not to provide information. Will you consider moving that to the guidance or the explanatory notes, rather than the 2018 act being referred to so prominently in the bill?
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
That is helpful. To take it a stage further, I note that the bill will potentially widen the number of people who are using judicial factors or engaging with judicial factory. If you heard that someone was an accountant, would you expect that they had some form of accountancy qualification? I think that that is the point.
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
That is why I wanted to push it a wee bit further.
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
That is helpful. I guess that also ties in, to a certain extent, with some of the questions about missing persons and about where non-financial criteria fit in the legislation. There is some overlap in the charity sections, with the potential for people to be judicial factors for trusts. We want to understand this as we approach stage 2. We are modernising very old legislation, and we note from the evidence that we have heard on various areas that there are points when financial return, or holding things static exactly as they are, are not the sole considerations that people would expect to be taken into account. Are we going to change the role of the judicial factor slightly under the bill?
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
The Law Society of Scotland, in its response to the committee’s call for views, said that the bill as introduced contains “a significant departure from” the Scottish Law Commission’s draft bill. It stated:
“Specifically, the Law Society considers that there has been a ‘watering down’ of the levels of legal and accountancy knowledge required for the roles of the Accountant and the Depute Accountant.”
On the other hand, the committee heard from the Scottish Courts and Tribunals Service that the bill reflects the existing approach, and that the existing approach works well. The SCTS believes that, as the same person who is the Accountant of Court also serves as the public guardian, it is important to think about a person’s suitability in the context of both roles, taking into account in particular that the public guardian’s work takes up the majority of the time.
Having heard all the evidence, does the Scottish Government agree with the SCTS, or are you minded to look again at the matter?
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
Yes—it is about the balance of skills within the team. I know that that becomes an operational matter, but—
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
I hear that, and it is all helpful. I do not want to push you on that—I am conscious that you are an official, rather than the minister—but we have had the question of the level of qualification posed to us. There may not be any practical examples, but the Law Society is currently posing that question to us. It is coming from the Law Society, as a relatively significant stakeholder, rather than from me, so in that sense, it is not unfounded.
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
It is a strange one. I feel that data protection is always important but, based on the evidence that we heard about people who are not familiar with the legislation and are interacting with it for the first time, the reference seems to be over the top in this case.
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
Section 17 of the bill covers the investment power of a judicial factor in respect of the estate. In respect of section 17, does the minister agree with certain stakeholders that it should be stated in the bill that a judicial factor could choose to invest in ethical, social or governance-tested—ESG—investments, even if that might not lead to a maximum income for the estate? Can you explain your reasoning here for the benefit of the committee?
Delegated Powers and Law Reform Committee
Meeting date: 7 May 2024
Oliver Mundell
I am saying that if you heard that someone was an Accountant of Court, you would, if you were not familiar with all the other pieces of legislation, think that they were an accountant—