Judicial factors: consultation analysis

Background

1. The Scottish Government undertook a consultation to seek views on a proposed draft Bill on Judicial Factors which was contained in the Report of Judicial Factors published by the Scottish Law Commission (SLC).

2. A judicial factor is a person appointed by the court to gather, supervised by the Accountant of Court, for the purpose of holding, managing, administering and protecting the property of another where the need arises.

3. The consultation sought views on the draft Bill and some of the recommendations made by the Commission. It also sought views in relation to the current procedure for the appointment of judicial factors in the case of missing persons and procedural issues in safeguarding children's property under the Children Scotland Act 1995.

4. The report contains recommendations, which would provide for a new regime to bring clarity, accessibility and efficiency to an important but outmoded area of the law.

The proposed Bill

5. The draft Bill sets out a comprehensive set of provisions governing all aspects of judicial factors, including appointment, powers, duties, remuneration, termination and the role of the Accountant of Court in relation to judicial factors.

6. The Scottish Government agreed with many of the recommendations contained in the Report.

Summary

7. We issued the consultation on 28 August 2019 and invited responses to the proposed draft Bill. The closing date was 20 November 2019. There were nine responses to the consultation and all but one of the respondents have agreed to their responses being made public. In addition, one of the respondents asked for additional information provided as an annex or supplementary paper not to be published.

8. This paper summarises key points raised by respondents to the consultation. The consultation paper, as well as responses to the consultation, can be accessed via the Scottish Government consultation webpages https://consult.gov.scot/justice/consultation-on-judicial-factors/

9. To protect the reputation of Scottish Ministers, named individuals, organisations or companies, all responses are screened for potentially defamatory statements before they are made available to the public.

10. The questions in this consultation were framed to elicit a broad range of responses ranging from simple "yes", "no" type responses to open comments. Furthermore, respondents might have responded to one, several or all questions in the consultation paper. Therefore, due to the wide range of comments within the responses received we have opted to provide an analysis of each question as detailed below. This also includes two questions which asked for comments or suggestions.

11. Detailed below are the questions asked in the consultation and the number of responses received. As stated above not all respondents answered every question. We have counted some answers as either "yes" or "no" when the respondent had not used the format of the response form but it was clear from comments given that they either agreed or disagreed with a question. In addition, two of the questions no. 2 and 13a asked for comments and suggestions.

Conclusion

12. Overall, the majority of respondents supported the draft Bill confirming that there is a necessity for the existing legislation to be updated and modernised.

13. Although, the number of responses were low at nine it may not be unsurprising given the specialist nature of the consultation. The number is nevertheless low and for that reason we have not opted to illustrate responses by way of percentage figures as this may be misleading. However, we are pleased that, in mitigation, we received responses from key bodies and organisations who have direct experience of the current regime and who have been able to provide insightful responses based on their own practical experience.

14. Such key bodies included;

• the Missing People charity who provide specialised support for families and friends of missing loved ones. This can include the administration or protection of their estates;
• the Law Society for Scotland seek appointments of judicial factors for firms of solicitors where there has been a breach of professional practice and they appear to be in financial difficulty;
• the Scottish Courts and Tribunals Service (SCTS) which incorporates the Accountant of Court (AoC). The AoC has a supervisory role in the appointment of judicial factors. This is relevant in all aspects of the administrations. Including managing and safeguarding the estates of children in Scotland and missing people estates;
• the Centre for Scots Law at the University of Aberdeen are academics supporting the study of Scots law, past, present and future, including as a practical, functioning reality; and
• the Faculty of Procurators of Caithness are a professional body of legal practitioners providing services to lawyers and have practical experience of the appointment of judicial factors.

Scottish Government response

15. There was a clear and strong message from the majority of respondents that the draft Bill was welcomed.

16. Of the nine responses received, four of the responses answered the majority of the questions. Another two responses responded to the relevant sections in the consultation in relation to their interests. A further three expressed their general view supporting the proposed legislation in this area.

17. The consultation has provided some clarity on which specific areas/issues need to be considered further when taking forward work on this draft Bill particularly where we asked for specific comments.

18. Responses to the proposals to make the process to appoint a judicial factor in the case of missing persons more accessible for family members was supportive, but some further work will be required to consider issues raised.

19. The questions on seeking views on procedural issues in safeguarding children's property under the Children (Scotland) Act 1995 were positive. Consideration of further suggestions or alternatives have been noted.

Next Steps

20. Although a low response rate was received as discussed above, key bodies did respond which has provided us with insightful responses. The suggestions and alternative proposals raised will need to be looked at and given consideration.

21. With a positive response to the Scottish Law Commission recommendations and draft Bill, the overall intention is to take forward work to implement the proposals. However, this will be dependent on the pressures on future legislative activity.