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 509 contributions
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
The committee can take that up with the faculty. We are likely to hear from it; we could send you further details and then you could comment.
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
I think that it would probably be in section 19, but that would be up to drafting colleagues—and probably in section 17—
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
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 them. Is that correct? Obviously, the bill would have been a chance to change those provisions.
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
Academics from the University of Aberdeen and Abertay University, as well as R3, all said that the fiduciary nature of the judicial factor’s duties needed to be spelled out explicitly in legislation. Professor Grier also thought that a clear statement was needed as to the legal remedies if there were a breach of those duties. Does the commission have a view on that?
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
So you would not think it appropriate in this case.
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
Thank you.
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
Thank you. In response to the committee’s call for views, the Law Society made the opposite challenge and thought that the bill’s requirements in section 15, on the duty to make a management plan, and section 16, on the duty to submit accounts to the Accountant of Court—I hope that my notes are right on this—were more prescriptive than those of the commission’s draft bill. Is the bill more prescriptive than the commission had in mind?
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
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?
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
You could have modified them.
Delegated Powers and Law Reform Committee
Meeting date: 16 April 2024
Oliver Mundell
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.