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A number of concerns have been raised over the Bankruptcy and Debt Advice (Scotland) Bill, which is currently before the Scottish Parliament.

The Bill proposes to substantially increase the powers of the Accountant in Bankruptcy (AiB) by transferring to it a large number of functions presently carried out by the Scottish courts. It also proposes to give the AiB the power to review its own decision at first instance – a task that is currently carried out by a sheriff.

These proposals are a cause of concern for the Law Society of Scotland, which states that matters of a legal nature, involving fundamental rights, should receive judicial scrutiny. It says that the provisions that will allow the AiB to review its own decisions are of particular concern, as they have the potential to create serious conflicts of interest.

The Bill is currently being examined by the Scottish Parliament’s Economy, Energy and Tourism Committee, and the Society recently gave oral evidence to the Committee on the matter.

“Giving the AiB a ‘quasi-judicial’ role, on top of its already significant administrative functions, could create a conflict in the AiB’s responsibilities between the legal rights and interests of debtor and creditors, which must have priority, and considerations of administrative efficiency, which must be subordinate,” explained Rachel Grant, member of the Law Society of Scotland’s Insolvency Law Committee.

“We are also concerned by proposals in the Bill which would allow the AiB to review its own decisions. We think this raises serious potential for conflicts of interest. A key principle of an appeal process is that an independent and impartial body carries out the review of the original decision,” she added. “Furthermore, the proposed changes may create an unnecessarily cumbersome and lengthy appeal process as it is likely that complex legal matters that are in dispute will still end up in court.”

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