Judicial factors, building heat and the National Care Service

Public policy highlights: March 2024

Judicial Factors (Scotland) Bill

The Law Society of Scotland responded to the call for views issued by the Delegated Powers and Law Reform Committee of the Scottish Parliament on the Judicial Factors (Scotland) Bill. The Society has a particular interest in the judicial factor regime as it relates to appointments under section 41 of the Solicitors (Scotland) Act 1980, but the response highlighted that a judicial factor may also be appointed in a range of other circumstances which may interact with charity law, trust law, the law of succession, child and family law or bankruptcy law.

The response was generally supportive of the Bill, which takes forward, without amendment, the majority of the Scottish Law Commission’s recommendations for reform in an area of law that is in need of modernisation. However, the response did highlight a number of areas where further clarification would be welcome, particularly in relation to the interaction between the Bill and other legislation that addresses specific situations in which a judicial factor may be appointed; the interaction between the Bill and Adults with Incapacity legislation; and the application of certain provisions of the Bill in relation to charities. The response also highlighted potential practical implications of the Bill, for example in connection with resignation and application for recall and discharge; vesting; and the power of the judicial factor to require information. The response also suggested that provision be made for substitute judicial factors in certain circumstances.

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Proposals for a Heat in Buildings Bill

The Law Society of Scotland’s Property Law Committee and Property and Land Law Reform Sub-Committee submitted a joint response to the Scottish Government’s consultation on proposals for a Heat in Buildings Bill. The consultation sought views on a range of legislative proposals relating to how buildings in Scotland are heated, including: ending the use of “polluting heating systems” after 2045; requiring those purchasing a home or business premises to end their use of “polluting heating systems” within a fixed period following completion of the sale; and requiring private landlords and homeowners to make sure that their properties meet a minimum energy efficiency standard by 2028 and 2033, respectively. 

The response noted that the proposals represent major changes to the legislative framework in this area. While it welcomed progress being made to improve the energy efficiency of homes in Scotland, it highlighted that a greater level of detail regarding the proposals is required to clearly understand how the general policy proposals will be implemented, and what the legal effects of the changes will look like. The response emphasised the importance of any proposed changes being finalised and communicated to stakeholders as early as possible to allow for necessary planning, preparation and additional engagement.

In the context of the proposals to end the use of polluting heating following a property purchase, concern was noted about the extent to which property purchasers will require advice on these matters. For example, some alternative heating systems may require legal advice on property law matters (e.g. where the new system is to be sited on common or shared property, or regarding title conditions) but also on matters of planning and building regulations, which would not normally be within the scope of standard advice given by a solicitor during a property purchase.

The response also noted that additional legal considerations would arise in relation to certain types of buildings, such as tenements, and that the proposals need to be consistent and workable within the legal framework in this context. It highlighted that specific consideration needs to be given within the proposals (such as in relation to the cost-cap proposals) to the housing stock in Scotland as a whole, in particular in relation to rural and listed properties where works may be more expensive or have specific requirements.

While the response was limited to the proposed legislative changes and legal considerations, it highlighted a number of other relevant non-legal-specific factors, which may impact on the operation and deliverability of the proposals – for example, options for financing changes and improvements to properties, such as funding packages and incentives.

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National Care Service (Scotland) Bill

The Society issued a briefing to MSPs ahead of the Stage 1 debate on the National Care Service (Scotland) Bill on 29th February.

The response noted that the Scottish Government’s proposed approach towards the creation of a National Care Service (NCS) had changed substantially during the course of Stage 1 scrutiny of the Bill and highlighted concerns regarding the lack of detail available in relation to the Government’s revised proposals. The response further highlighted that effective scrutiny is a crucial element of the creation of good law and called for clarity on how the revised approach will add value to the existing complex legal and organisational landscape; how it will interact with existing structures; and how it will improve outcomes for the end users of social care services.

The response also commented on the complex existing legislative landscape for social work and social care services; the framework nature of the Bill and the challenges this may create for parliamentary scrutiny; the need for new legislation to contain clear and attributable rights and duties, as well as effective mechanisms for redress including legal redress; and the need for statutory safeguards to ensure that the proposed co-design process is meaningful and sits alongside strengthened consultation duties. The response also highlighted concerns regarding adequate resourcing and the need to mitigate actual and perceived conflicts of interest. 

Find out more about our work on the Bill

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