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Judiciary and Courts (Scotland) Act 2008

Type Act of the Scottish Parliament

Publication 2008-10-29

Last updated 2022-11-04

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

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Part 1 — Judicial independence

Divisions of the Inner House

1

(1) The following persons must uphold the continued independence of the judiciary—

(a) the First Minister,

(b) the Lord Advocate,

(d) members of the Scottish Parliament, and

(e) all other persons with responsibility for matters relating to—

(i) the judiciary, or

(ii) the administration of justice,

where that responsibility is to be discharged only in or as regards Scotland.

(2) In particular, the First Minister, the Lord Advocate and the Scottish Ministers—

(a) must not seek to influence particular judicial decisions through any special access to the judiciary, and

(b) must have regard to the need for the judiciary to have the support necessary to enable them to carry out their functions.

(3) In this section “the judiciary” means the judiciary of—

(a) the Supreme Court of the United Kingdom,

(b) any other court established under the law of Scotland, and

(4) In subsection (3)(c) “international court” means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—

(a) an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or

(b) a resolution of the Security Council or General Assembly of the United Nations.

Part 2 — The judiciary

Chapter 1 — Head of the Scottish Judiciary

Head of the Scottish Judiciary

2

(1) The Lord President is the Head of the Scottish Judiciary.

(2) As Head of the Scottish Judiciary the Lord President is responsible—

(a) for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts,

(b) for representing the views of the Scottish judiciary to the Scottish Parliament and the Scottish Ministers,

(c) for laying before the Scottish Parliament written representations on matters that appear to the Head of the Scottish Judiciary to be matters of importance relating to—

(i) the Scottish judiciary, or

(ii) the administration of justice,

(d) for making and maintaining appropriate arrangements for the welfare, training and guidance of judicial office holders, and

(e) for making and maintaining, in accordance with section 28, appropriate arrangements for—

(i) the investigation and determination of any matter concerning the conduct of judicial office holders, and

(ii) the review of such determinations.

(2A) If, in carrying out the responsibility mentioned in subsection (2)(a), the Lord President gives a direction of an administrative character to the President of the Sheriff Appeal Court, the President must comply with the direction.

(3) If, in carrying out the responsibility mentioned in subsection (2)(a), the Lord President gives a direction of an administrative character to a sheriff principal, the sheriff principal must comply with the direction.

(4) In carrying out the responsibility for making and maintaining arrangements for training mentioned in subsection (2)(d) the Lord President must require any judicial office holder, or class of judicial office holder, to attend such training as the Lord President determines.

(5) References in this section to the Scottish judiciary are references to the judiciary of any court established under the law of Scotland (other than the Supreme Court of the United Kingdom).

(6) In this section, “the Scottish courts” means—

(a) the Court of Session,

(b) the High Court of Justiciary,

(d) the election court in Scotland constituted under section 123 of that Act,

(e) the Lands Valuation Appeal Court,

(ea) the Sheriff Appeal Court,

(f) the sheriff courts,

(g) justice of the peace courts, and

(h) such other courts as the Scottish Ministers may by order specify.

(7) Before making an order under subsection (6)(h), the Scottish Ministers must consult the Lord President.

Delegation of functions

3

(1) The Lord President may delegate to a judicial office holder any function mentioned in subsection (2) of section 2 other than the functions mentioned in subsection (2) below.

(2) Those functions are—

(a) so far as exercisable in relation to sheriff courts or justice of the peace courts, the function conferred by paragraph (a) of subsection (2) of that section,

(b) the function conferred by paragraph (e) of subsection (2) of that section.

Chapter 2 — Senior judiciary: vacancy, incapacity and suspension

Lord President

4

(1) This section applies during any period when—

(a) the office of Lord President is vacant,

(b) the Lord President is incapacitated, or

(2) During such a period—

(a) any function of the Lord President is exercisable instead by the Lord Justice Clerk,

(b) anything that falls to be done in relation to the Lord President falls to be done instead in relation to the Lord Justice Clerk,

(d) anything that falls to be done in relation to the Lord Justice Clerk falls to be done instead in relation to the senior judge of the Inner House.

(3) For the purposes of this section—

(a) the Lord President is to be regarded as incapacitated only if the First Minister has received a declaration in writing signed by a majority of the total number of judges of the Inner House declaring that they are satisfied that the Lord President is incapacitated,

(b) in such a case, the Lord President is to be regarded as incapacitated until the First Minister has received a declaration in writing signed by a majority of the total number of judges of the Inner House declaring that they are satisfied that the Lord President is no longer incapacitated.

(4) The judges of the Inner House making a declaration for the purposes of subsection (3)(a) or (b) must include the Lord Justice Clerk.

(5) The requirement in subsection (4)—

(a) does not apply during any period when section 5 applies, and

(b) is subject to section 7(4).

(6) The First Minister must send a copy of a declaration received under subsection (3)(a) or (b) to the Presiding Officer of the Scottish Parliament.

(7) The reference in subsection (2)(a) to functions of the Lord President does not include the function of participating in a panel established under section 19(2) in connection with a vacancy, or an expected vacancy, in the office of Lord Justice Clerk.

Lord Justice Clerk

5

(1) This section applies during any period when—

(a) the office of Lord Justice Clerk is vacant,

(b) the Lord Justice Clerk is incapacitated, or

(2) During such a period—

(a) any function of the Lord Justice Clerk is exercisable instead by the senior judge of the Inner House, and

(b) anything that falls to be done in relation to the Lord Justice Clerk falls to be done instead in relation to the senior judge of the Inner House.

(3) For the purposes of this section—

(a) the Lord Justice Clerk is to be regarded as incapacitated only if the First Minister has received a declaration in writing signed by a majority of the total number of judges of the Inner House declaring that they are satisfied that the Lord Justice Clerk is incapacitated,

(b) in such a case, the Lord Justice Clerk is to be regarded as incapacitated until the First Minister has received a declaration in writing signed by a majority of the total number of judges in the Inner House declaring that they are satisfied that the Lord Justice Clerk is no longer incapacitated.

(4) The judges of the Inner House making a declaration for the purposes of subsection (3)(a) or (b) must include the Lord President.

(5) The requirement in subsection (4)—

(a) does not apply during any period when section 4 applies, and

(b) is subject to section 7(4).

(6) The First Minister must send a copy of a declaration received under subsection (3)(a) or (b) to the Presiding Officer of the Scottish Parliament.

Periods when both sections 4 and 5 apply

6

(1) Subsection (2) applies during any period when both sections 4 and 5 apply.

(2) During such a period, subsection (2) of each of those sections does not apply and instead—

(a) any function of the Lord President is exercisable instead by the senior judge of the Inner House,

(b) anything that falls to be done in relation to the Lord President falls to be done instead in relation to the senior judge of the Inner House,

(d) anything that falls to be done in relation to the Lord Justice Clerk falls to be done instead in relation to the second senior judge of the Inner House.

Supplementary

7

(1) Where—

(a) any function is exercisable by, or anything falls to be done in relation to, the senior judge of the Inner House by virtue of section 4, 5 or 6, and

(b) that judge is unavailable,

the function is exercisable by, or the thing falls to be done in relation to, the second senior judge of the Inner House.

(2) Where—

(a) any function is exercisable by, or anything falls to be done in relation to, the second senior judge of the Inner House by virtue of section 6 or subsection (1) above, and

(b) that judge is unavailable,

the function is exercisable by, or the thing falls to be done in relation to, the next senior judge of the Inner House who is available.

(3) In calculating the total number of judges of the Inner House for the purposes of section 4(3) or 5(3), the following are not to be counted—

(a) in the case of section 4(3)—

(i) the Lord President, and

(ii) during any period when section 5 applies, the Lord Justice Clerk,

(b) in the case of section 5(3)—

(i) the Lord Justice Clerk, and

(ii) during any period when section 4 applies, the Lord President, and

(i) any judge of the Inner House who is suspended from office, and

(ii) any office of judge of the Inner House which is vacant.

(4) The requirements in sections 4(4) and 5(4) do not apply for the purpose of declarations under sections 4(3)(a) and 5(3)(a) respectively if—

(a) the judges making the declarations are satisfied that both the Lord President and the Lord Justice Clerk are incapacitated, and

(b) the declarations state that this subsection applies.

(5) Nothing in this Chapter affects any remuneration payable to, or in respect of, the Lord President, the Lord Justice Clerk or any other judge of the Inner House.

Interpretation of Chapter 2

8

(1) In this Chapter—

“incapacitated”, in relation to the Lord President or the Lord Justice Clerk, means unable by reason of ill health to carry out the functions of the office concerned, and

“suspended” means suspended from office under section 36.

(2) A reference in this Chapter to the senior judge, the second senior judge or the next senior judge of the Inner House is to be construed by reference to seniority of appointment to a Division of the Inner House.

(3) A reference in this Chapter to—

(a) any function of the Lord President includes any function of the Lord Justice General,

(b) anything that falls to be done in relation to the Lord President includes anything that falls to be done in relation to the Lord Justice General,

(4) Where any other enactment makes provision for the carrying out of any function of the Lord President by the Lord Justice Clerk, this Act does not affect the operation of that enactment except in relation to any period during which section 4 applies.

Chapter 3 — Judicial appointments

Judicial Appointments Board for Scotland

The Judicial Appointments Board for Scotland

9

(1) There is established a body to be known as the Judicial Appointments Board for Scotland (referred to in this Chapter as “the Board”).

(2) The functions of the Board are—

(a) to recommend to members of the Scottish Executive individuals for appointment to judicial offices within the Board's remit, and

(b) to provide advice to members of the Scottish Executive in connection with such appointments.

(3) In carrying out its functions, the Board is not to be subject to the direction or control of any member of the Scottish Executive or any other person.

(4) Schedule 1 makes further provision about the Board.

Judicial offices within the Board’s remit

10

(1) The judicial offices within the Board's remit are—

(a) the office of judge of the Court of Session,

(b) the office of Chairman of the Scottish Land Court,

(c) the office of temporary judge (except in any case where the individual to be appointed to the office holds or has held one of the offices mentioned in subsection (2)),

(d) the office of sheriff principal,

(e) the office of sheriff,

(f) the office of part-time sheriff, ...

(fza) the office of summary sheriff,

(fzb) the office of part-time summary sheriff,

(fzc) the office of member of the Parole Board for Scotland (including the chairperson of the Parole Board),

(fa) the positions within the Scottish Tribunals mentioned in subsection (2A), and

(g) such other judicial offices (whether full-time, part-time or temporary) as the Scottish Ministers may by order specify.

(2) The offices referred to in subsection (1)(c) are—

(a) the office of judge of the European Court,

(b) the office of judge of the European Court of Human Rights,

(d) the office of sheriff principal, and

(e) the office of sheriff.

(2A) The positions within the Scottish Tribunals are—

(a) Vice-President of the Upper Tribunal, if to be appointed under section 26(1) of the Tribunals (Scotland) Act 2014,

(b) Chamber President in the First-tier Tribunal, if to be appointed under section 22(1) of that Act,

(c) Deputy Chamber President in the First-tier Tribunal, if to be appointed under the relevant provisions of schedule 4 to that Act,

(d) ordinary member or legal member of the First-tier Tribunal or the Upper Tribunal, if to be appointed under the relevant provisions of schedule 3 or (as the case may be) schedule 5 to that Act.

(3) The Scottish Ministers may specify a judicial office under subsection (1)(g) only if the First Minister has, or the Scottish Ministers have, the function of making appointments to the office, or of nominating or recommending individuals for appointment to the office.

(4) In subsection (1)(g), “judicial office ”means—

(a) the office of judge of any court,

(b) the office of member of any tribunal, or

Recommendations of the Board

11

(1) The relevant Minister may—

(a) appoint an individual to a judicial office within the Board's remit, or

(b) nominate or recommend an individual for appointment to such an office,

only if the Board has recommended the individual for appointment to the office.

(2) Subsection (3) applies where—

(a) the Board has recommended an individual for appointment, and

(b) the relevant Minister has decided not to accept the recommendation.

(3) The relevant Minister must give the Board notice of the decision.

(4) The notice must include the reasons for the decision.

(5) On receipt of the notice, the Board must—

(a) reconsider its recommendation, and

(b) make a further recommendation (whether of the same or a different individual).

(6) In this section references to the relevant Minister are—

(a) where the First Minister has the function of making appointments to the judicial office concerned, or nominating or recommending individuals for appointment to the office, references to the First Minister,

(b) where the Scottish Ministers have that function, references to the Scottish Ministers.

Selection criteria

12

(1) This section applies where the Board is selecting an individual to be recommended by it for appointment.

(2) Selection must be solely on merit.

(3) The Board may select an individual only if it is satisfied that the individual is of good character.

Assessment of legal knowledge, skills and competence

13

(1) Only the judicial and legal members of the Board may take part in any assessment by the Board of an individual's—

(a) knowledge of the law, or

(b) skills and competence in the interpretation and application of the law.

(2) Subsection (1) does not prevent a member of the Board from taking part in a decision of the Board as to whether to recommend an individual for appointment to a judicial office.

Encouragement of diversity

14

(1) In carrying out its functions, the Board must have regard to the need to encourage diversity in the range of individuals available for selection to be recommended for appointment to a judicial office.

(2) Subsection (1) is subject to section 12.

Guidance

15

(1) The Scottish Ministers may issue guidance to the Board as to the procedures to be followed by it in the carrying out of its functions.

(2) The Lord President may issue guidance to the Board as to the procedures to be followed by it in the carrying out of its functions.

(3) Guidance issued under subsection (1) or (2) may, in particular, relate to the manner in which the Board is to publicise vacancies and identify candidates for any appointment.

(4) In carrying out its functions, the Board must have regard to any guidance issued under this section.

(5) The Scottish Ministers must publish any guidance issued under subsection (1).

(6) The Lord President must publish any guidance issued under subsection (2).

Guidance: procedure

16

(1) Before issuing any guidance under section 15(1) or (2), the Scottish Ministers or, as the case may be, the Lord President must lay a draft of the proposed guidance before the Scottish Parliament.

(2) The Scottish Ministers or, as the case may be, the Lord President must not issue the guidance before the expiry of the period of 21 days beginning with the day on which the draft of it is laid before the Parliament under subsection (1).

(3) If, during that period, the Parliament by resolution makes any recommendations in relation to the draft guidance, the Scottish Ministers or, as the case may be, the Lord President must have regard to those recommendations.

(4) The Scottish Ministers must, before laying a draft of proposed guidance before the Parliament under subsection (1), consult the Lord President and the Board on the draft.

(5) The Lord President must, before laying a draft of proposed guidance before the Parliament under subsection (1), consult the Scottish Ministers and the Board on the draft.

(6) In calculating a period of 21 days for the purposes of subsection (2), no account is to be taken of any time during which the Parliament is—

(a) dissolved, or

(b) in recess for more than 4 days.

Confidentiality of information

17

(1) A person (whether or not a member of the Board or its staff) who has provided or obtained confidential information in connection with the carrying out of the Board's functions must not disclose the information unless the disclosure is authorised.

(2) Information is confidential for the purposes of subsection (1) if it relates to an identified or identifiable individual.

(3) Disclosure of information is authorised for the purposes of subsection (1) only so far as it is—

(a) made with the consent of the individual to whom the information relates,

(b) necessary for the purposes of the carrying out by the Board of its functions,

(c) necessary for the purposes of the carrying out by a member of the Scottish Executive of a function of appointing an individual to a judicial office within the Board's remit, or nominating or recommending an individual for appointment to such an office, or

(d) required for the purposes of any legal proceedings, whether criminal or civil, (including for the purposes of the investigation of any offence or suspected offence).

(4) For the purposes of this section, an opinion or other information given by one identified or identifiable individual about another is to be treated as information that relates to both individuals.

(5) This section does not prevent the disclosure of information which is already, or has previously been, in the public domain.

(6) Any disclosure of information in contravention of this section which causes loss or damage to the individual to whom the information relates is actionable at the instance of that individual.

Annual report

18

(1) As soon as practicable after the end of each year, the Board must—

(a) prepare and publish a report on the carrying out of its functions during that year, and

(b) send a copy of the report to the Scottish Ministers.

(2) The Scottish Ministers must lay before the Scottish Parliament a copy of each report sent to them by the Board under subsection (1)(b).

Lord President and Lord Justice Clerk

Appointment

19

(1) This section applies where a vacancy arises, or is expected to arise, in the office of Lord President or the office of Lord Justice Clerk.

(2) The First Minister must establish a panel in accordance with schedule 2.

(3) The function of the panel is to recommend to the First Minister individuals who are suitable for appointment to fill the vacancy.

(4) For the purposes of section 95(2) of the Scotland Act 1998 (c. 46), the First Minister must not nominate any individual for appointment to fill the vacancy until the panel has made its recommendation under subsection (3).

(5) In deciding whom to nominate for the purposes of that section, the First Minister must have regard to the panel's recommendation.

Selection criteria

20

(1) This section applies where a panel established under section 19(2) is selecting an individual to be recommended by it as suitable for appointment.

(2) Selection must be solely on merit.

(3) The panel may select an individual only if it is satisfied that the individual is of good character.

Other Court of Session judges

Eligibility of solicitors for appointment as judges

21

In paragraph 1(b) (appointment of solicitors as judges of the Court of Session) of Schedule 4 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40)—

(a) for “both” substitute “ either ”, and

(b) for “and” substitute “ or ”.

Temporary judges: tenure

22

(1) Paragraph 5 (temporary judges) of Schedule 4 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) is amended as follows.

(2) In sub-paragraph (1), the words from “for” in the second place it appears to the end are repealed.

(3) For sub-paragraph (2) substitute—

(2) A person's appointment as a temporary judge lasts for 5 years, subject to the following provisions of this paragraph and paragraph 9 below. (3) A person's appointment as a temporary judge comes to an end on the date on which the person reaches the age of 70. (4) Sub-paragraph (3) above is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (c. 8) (power to authorise continuance in office up to the age of 75). (5) A person's appointment as a temporary judge comes to an end if the person is removed from office under section 39 of the Judiciary and Courts (Scotland) Act 2008 (asp 6) (temporary judges: removal from office). (6) A person appointed as a temporary judge may resign at any time by giving notice to that effect to the Scottish Ministers. (7) Where a person's appointment as a temporary judge comes to an end by virtue of sub-paragraph (2) above, the person is to be reappointed under the said section 35(3), unless— (a) the person has declined reappointment, (b) the person has reached the age of 70, (c) the person has sat as a temporary judge on fewer than 50 days during the period of appointment, or (d) the Lord President has recommended to the Scottish Ministers that the person should not be reappointed. (8) A person whose appointment as a temporary judge comes to an end by resignation under sub-paragraph (6) above may be reappointed under the said section 35(3). (9) The provisions of this paragraph, and paragraphs 6 to 11 below, apply to a reappointment as they apply to an appointment.

Re-employment of retired judges

23

In section 22(1) (re-employment of retired judges) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73)—

(a) the words “, with the consent of the Scottish Ministers,” are repealed, and

(b) in paragraph (a), after “Session” insert “ (and did not cease to hold that office by virtue of section 95(6) of the Scotland Act 1998 (c. 46)) ”.

Sheriffs principal, sheriffs and part-time sheriffs

Appointment of temporary sheriffs principal

24

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Re-employment of retired sheriffs principal and sheriffs

25

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appointment of part-time sheriffs

26

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sheriffs and part-time sheriffs: official oaths

27

In the Promissory Oaths Act 1868 (c. 72), in the second part of the Schedule (persons to take oath of allegiance and judicial oath), after “sheriffdoms,” insert “ sheriffs, part-time sheriffs ”.

Chapter 4 — Judicial conduct

Judicial conduct

Rules about investigations etc.

28

(1) The Lord President may by rules make provision for or in connection with—

(a) the investigation and determination of any matter concerning the conduct of judicial office holders,

(b) reviews of any such determinations.

(2) Rules under subsection (1) may in particular contain provision about—

(a) circumstances in which an investigation must or may be undertaken,

(b) the making of complaints,

(d) the conduct of an investigation (including in particular steps to be taken by the office holder under investigation or by a complainant or other person),

(e) time limits for taking any step and procedures for extending time limits,

(f) persons by whom an investigation or part of an investigation is to be conducted,

(g) matters to be determined by the person conducting an investigation (or part of an investigation), the Lord President or any other person,

(h) the making of recommendations by persons conducting investigations (or parts of investigations),

(i) the obtaining of information relating to complaints,

(j) the keeping of records of investigations,

(k) confidentiality of communications or proceedings,

(l) the publication of information or its provision to any person.

(3) Rules under subsection (1)—

(a) may make different provision for different cases,

(b) are to be published in such manner as the Lord President may determine.

Powers of Lord President

29

(1) Where subsection (2) applies in relation to a judicial office holder, the Lord President may, for disciplinary purposes, give the judicial office holder—

(a) formal advice,

(b) a formal warning, or

(2) This subsection applies where—

(a) an investigation has been carried out in accordance with rules under section 28(1), and

(b) the person carrying out the investigation has recommended that the Lord President exercise a power mentioned in subsection (1).

(3) This section does not restrict what the Lord President may do—

(a) informally,

(b) for other purposes, or

Judicial Complaints Reviewer

30

(1) The Scottish Ministers may, with the consent of the Lord President, appoint a person (to be known as the “Judicial Complaints Reviewer”) for the purpose of carrying out the functions mentioned in subsection (2).

(2) Those functions are—

(a) on the request of the complainant or the judicial office holder to whom an investigation carried out in pursuance of section 2(2)(e)(i) relates, to review the handling of the investigation to determine whether the investigation has been carried out in accordance with rules under section 28(1),

(b) in any case where the Reviewer considers that such an investigation has not been carried out in accordance with those rules, to refer the case to the Lord President,

(c) as directed by the Scottish Ministers, to prepare and publish reports on investigations carried out in pursuance of section 2(2)(e)(i), and

(d) to make written representations to the Lord President about procedures for handling the investigation of matters concerning the conduct of judicial office holders.

(3) For the purposes of subsection (2)(a) “the complainant”, in relation to an investigation, means the person whose complaint led to the carrying out of the investigation.

(4) The Lord President must have regard to any written representations made under subsection (2)(d).

(5) A person is disqualified from appointment, and from holding office, as the Judicial Complaints Reviewer if the person is or becomes—

(a) a member of the House of Commons,

(b) a member of the Scottish Parliament,

(d) a Minister of the Crown,

(e) a member of the Scottish Executive,

(f) a civil servant,

(g) a person who is, or has been, a judicial office holder, or

(h) a solicitor, advocate or barrister (in any case whether practising or not).

(i) an ordinary or legal member of either or both of the Scottish Tribunals by virtue of section 15 or 16 of the Tribunals (Scotland) Act 2014.

Judicial Complaints Reviewer: tenure etc.

31

(1) The Scottish Ministers are to determine with the consent of the Lord President—

(a) the period for which a person is appointed as the Judicial Complaints Reviewer, and

(b) subject to subsection (2), the other terms and conditions on which a person is so appointed.

(2) The Scottish Ministers may pay to the Judicial Complaints Reviewer such fees and expenses as they may determine.

(3) The Judicial Complaints Reviewer may resign office by giving notice in writing to the Scottish Ministers.

(4) If—

(a) the Scottish Ministers are satisfied that subsection (5) applies, and

(b) the Lord President consents,

the Scottish Ministers may, by notice in writing, remove the Judicial Complaints Reviewer from office.

(5) This subsection applies if—

(a) the Judicial Complaints Reviewer has failed without reasonable excuse to carry out the functions of that office for a continuous period of 6 months,

(b) the Reviewer has been convicted of an offence,

(d) the Reviewer is otherwise unfit to be the Judicial Complaints Reviewer or unable for any reason to carry out the functions of that office.

(6) For the purposes of subsection (5)(c), the Reviewer becomes insolvent on—

(a) the approval of a voluntary arrangement proposed by the Reviewer,

(b) being adjudged bankrupt,

(d) the Reviewer's granting a trust deed for creditors.

(7) A person who is or has been the Judicial Complaints Reviewer may be reappointed for further periods.

(8) A person holding office by virtue of subsection (7) may not hold office for periods (whether or not consecutive) totalling more than 5 years.

Guidance

32

(1) The Judicial Complaints Reviewer must comply with any guidance that the Scottish Ministers issue about the carrying out of the Reviewer's functions.

(2) Before issuing any such guidance, the Scottish Ministers must consult the Lord President.

(3) The Scottish Ministers must publish any guidance issued under subsection (1).

Lord President’s powers on referral

33

(1) Subsection (2) applies where a case is referred to the Lord President by virtue of section 30(2)(b).

(2) The Lord President may—

(a) vary or revoke the determination made in the case (or part of the determination),

(b) cause a fresh investigation to be carried out,

(d) deal with the referral in such other way as the Lord President considers appropriate.

Suspension

34

(1) If the Lord President considers that it is necessary for the purpose of maintaining public confidence in the judiciary, the Lord President may suspend a judicial office holder—

(a) from acting as a judge as mentioned in paragraph (b) or (c) of the definition of “judicial office holder” in subsection (1) of section 43, or

(b) from any of the judicial offices mentioned in subsection (2) of that section.

(2) Such a suspension lasts for such period as the Lord President may specify when suspending the judicial office holder.

(3) Nothing in subsection (1) affects any remuneration payable to, or in respect of, the judicial office holder.

(4) The Lord President's functions under this section may be carried out—

(a) where the Lord President is unavailable, by the Lord Justice Clerk,

(b) where both the Lord President and the Lord Justice Clerk are unavailable, by the senior judge of the Inner House.

(5) In subsection (4)(b) the reference to the senior judge of the Inner House is to be construed by reference to seniority of appointment to a Division of the Inner House.

Chapter 5 — Removal from office

Judges

Tribunal to consider fitness for judicial office

35

(1) The First Minister—

(a) must, when requested to do so by the Lord President, and

(b) may, in such other circumstances as the First Minister thinks fit,

constitute a tribunal to investigate and report on whether a person holding a judicial office to which this section applies is unfit to hold the office by reason of inability, neglect of duty or misbehaviour.

(2) The judicial offices to which this section applies are—

(a) the office of Lord President,

(b) the office of Lord Justice Clerk,

(d) the office of Chairman of the Scottish Land Court, and

(e) the office of temporary judge.

(3) Before constituting a tribunal under subsection (1)(b) the First Minister must consult—

(a) where the tribunal is to be constituted for the purpose of considering the Lord President's fitness for office, the Lord Justice Clerk,

(b) where the tribunal is to be constituted for any other purpose, the Lord President.

(4) A tribunal constituted under this section is to consist of—

(a) two individuals who hold, or have held, high judicial office (“judicial members”),

(b) one individual who is, and has been for at least 10 years, an advocate or solicitor, and

(c) one individual who does not hold (and has never held) high judicial office and is not (and never has been) an advocate or solicitor.

(5) “High judicial office” has the meaning given by section 60 of the Constitutional Reform Act 2005 (c. 4).

(6) At least one of the judicial members must be a member of the Judicial Committee of the Privy Council.

(7) At least one of the judicial members must hold, or have held, office as a judge of the Court of Session.

(8) The selection of persons to be members of a tribunal under this section is to be made by the First Minister with the agreement of—

(a) where the tribunal is to be constituted for the purpose of considering the Lord President's fitness for office, the Lord Justice Clerk,

(b) where the tribunal is to be constituted for any other purpose, the Lord President.

(9) If only one of the judicial members is a member of the Judicial Committee of the Privy Council, that person is to chair the tribunal.

(10) If both of the judicial members are members of the Judicial Committee of the Privy Council, the First Minister must appoint one of them to chair the tribunal.

(11) The member who chairs the tribunal has a casting vote.

Suspension during investigation

36

(1) Where the Lord President has requested that the First Minister constitute a tribunal under section 35, the Lord President may, at any time before the tribunal reports to the First Minister, suspend the person who is to be, or is, the subject of the investigation, from office.

(2) Such a suspension lasts until the Lord President orders otherwise.

(3) A tribunal constituted under section 35 may, at any time before the tribunal reports to the First Minister, recommend to the First Minister that the person who is the subject of the tribunal's investigation be suspended from office.

(4) Such a recommendation must be in writing.

(5) The First Minister on receiving such a recommendation may suspend the person from office.

(6) Such a suspension lasts until the First Minister orders otherwise.

(7) Suspension under this section from the office of Lord President, Lord Justice Clerk, judge of the Court of Session or Chairman of the Scottish Land Court does not affect any remuneration payable to, or in respect of, the office in respect of the period of suspension.

Further provision about tribunals

37

(1) A tribunal constituted under section 35 may require any person—

(a) to attend its proceedings for the purpose of giving evidence,

(b) to produce documents in the person's custody or under the person's control.

(2) A person on whom such a requirement is imposed is not obliged to answer any question or produce any document which the person would be entitled to refuse to answer or produce in a court in Scotland.

(3) Subsection (4) applies where a person on whom a requirement has been imposed under subsection (1)—

(a) refuses or fails, without reasonable excuse, to comply with the requirement,

(b) refuses or fails, without reasonable excuse, while attending the tribunal proceedings to give evidence, to answer any question, or

(4) The Court of Session may, on an application made to it by the tribunal—

(a) make such order for enforcing compliance as it sees fit, or

(b) deal with the matter as if it were a contempt of the Court.

(5) The Court of Session may by act of sederunt make provision as to the procedure to be followed by and before tribunals constituted under section 35.

(6) The Scottish Ministers may pay such remuneration to, and expenses of, members of tribunals constituted under section 35 as they think fit.

(7) The Scottish Ministers must pay such expenses as they consider are reasonably required to be incurred to enable a tribunal constituted under section 35 to carry out its functions.

Report of tribunal

38

(1) The report of a tribunal constituted under section 35 must—

(a) be in writing,

(b) contain reasons for its conclusion, and

(2) The First Minister must lay the report before the Scottish Parliament.

Temporary judges: removal from office

39

(1) Where subsection (2) applies, a person may be removed from office as a temporary judge by the First Minister.

(2) This subsection applies if—

(a) a tribunal constituted under section 35 has reported to the First Minister that the person is unfit to hold that office by reason of inability, neglect of duty or misbehaviour, and

(b) the First Minister has laid the report before the Scottish Parliament.

Sheriffs

Consideration of fitness for, and removal from, shrieval office

40

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Justices of the peace

Provision relating to tribunal considering fitness for office of justices of the peace

41

(1) Section 71 (removal of justices of the peace) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) is amended as follows.

(2) In subsection (7), for “Scottish Ministers may by order”, substitute “ Court of Session may by act of sederunt ”.

(3) In subsection (8), for “order” substitute “ act of sederunt ”.

Chapter 6 — Training and appraisal of justices of the peace

Training and appraisal of justices of the peace

42

(1) Section 69 (training and appraisal of justices of the peace) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) is amended is follows.

(2) In subsection (1), for “Scottish Ministers” substitute “ Lord President of the Court of Session ”.

(3) Subsections (2) and (4) are repealed.

Chapter 7 — Meaning of “judicial office holder”

Meaning of “judicial office holder”

43

(1) In this Part “judicial office holder” means—

(a) the holder of any of the judicial offices mentioned in subsection (2),

(b) a person acting as a judge by virtue of section 20E(1) (re-employment of former judges) or 20F(3) (re-employment of former judges: further provision), or

(c) a person acting as a sheriff or as a summary sheriff by virtue of section 12(1) or 13(5) of the Courts Reform (Scotland) Act 2014.

(2) Those judicial offices are—

(a) the office of judge of the Court of Session,

(b) the office of Chairman of the Scottish Land Court,

(ca) the office of Appeal Sheriff,

(d) the office of sheriff principal,

(e) the office of temporary sheriff principal,

(f) the office of sheriff,

(g) the office of part-time sheriff,

(ga) the office of summary sheriff,

(gb) the office of part-time summary sheriff,

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) the office of justice of the peace,

(j) such other judicial offices (whether full-time, part-time or temporary) as the Scottish Ministers may by order specify.

(3) Before making an order under subsection (2)(j), the Scottish Ministers must consult the Lord President.

Part 3 — The courts

The Court of Session

Maximum number of judges

44

(1) Section 1 (number of judges of the Court) of the Court of Session Act 1988 (c. 36) is amended as follows.

(2) In subsection (1), after “(3)” insert “ , (3A) ”.

(3) In subsection (3), for the words from “Parliament” in the first place it appears to the end substitute “ and approved by resolution of the Scottish Parliament. ”.

(4) After subsection (3) insert—

(3A) The Lord President must be consulted before any draft of an Order under this section is laid before the Parliament.

Number of judges of the First and Second Divisions of the Inner House

45

In section 2(2A) (composition of the Court) of the Court of Session Act 1988 (c. 36), after “may” insert “ , after consulting the Lord President, ”.

Divisions of the Inner House

46

(1) The Court of Session Act 1988 (c. 36) is amended as follows.

(2) In section 2 (composition of the Court)—

(a) for subsection (3) substitute—

(3) The Lord President may from time to time constitute, from among the judges of the Court, an extra Division of the Inner House for the purpose of hearing and disposing of causes pending before the Inner House; and any reference in this Act or in any other enactment to a Division of the Inner House shall be construed as including a reference to such an extra Division.

, and

(b) in subsection (4), at beginning, insert “ Subject to section 5(ba) below, ” .

(3) In section 5 (power to regulate procedure etc. in the Court of Session by act of sederunt), after paragraph (b) insert—

(ba) to make provision as to the quorum for a Division of the Inner House considering solely procedural matters, and, in the case of an extra Division, to make provision as to which judge is to preside and to sign any judgment or interlocutor pronounced by the extra Division;

Sheriff courts

Sheriff principal’s responsibility

47

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Repeal of certain responsibilities of Scottish Ministers

48

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Lord President’s default power

49

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Alteration of boundaries of sheriffdoms

50

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sheriff court districts and places where sheriff courts are to be held

51

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Repeal of power to appoint sheriff to assist Scottish Ministers

52

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sheriffs principal and sheriffs acting in other sheriffdoms

53

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Residence and leave of absence of sheriffs principal

54

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Number, residence and deployment of sheriffs

55

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Leave of absence of sheriffs

56

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Justice of the peace courts

Establishment, constitution etc.

57

(1) The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) is amended as follows.

(2) In section 59 (establishing justice of the peace courts)—

(a) subsection (1) is repealed,

(b) in subsection (4), for “Scottish Ministers determine” substitute “ Lord President of the Court of Session determines ”,

(d) for subsection (7) substitute—

(7) The Scottish Ministers may make an order under subsection (2) or (6) only with the consent of— (a) the Lord President, and (b) the Scottish Court Service. (7A) Before consenting to the making of such an order— (a) the Lord President must consult the sheriff principal for the sheriffdom in which the JP court is, or is to be, located, and (b) the Scottish Court Service must consult such persons as it considers appropriate.

(3) In section 63 (constitution and powers etc. of justice of the peace courts)—

(a) after subsection (2) insert—

(2A) The Scottish Ministers may make an order under subsection (2) only on the recommendation of the Lord President of the Court of Session.

, and

(b) in subsection (5)(b), for “Scottish Ministers” substitute “ Lord President ”.

Sheriff principal’s responsibility

58

(1) The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) is amended as follows.

(2) For section 61 substitute—

(61) (1) The sheriff principal of each sheriffdom is responsible for securing the efficient disposal of business in JP courts in that sheriffdom. (2) If, in carrying out that responsibility, the sheriff principal gives a direction of an administrative character to a person mentioned in subsection (3), the person must comply with the direction. (3) Those persons are— (a) a justice of the peace, or stipendiary magistrate, appointed for the sheriffdom, (b) a member of staff of the Scottish Court Service. (4) Subsections (1) and (2) are subject to section 2(2)(a) and (3) of the Judiciary and Courts (Scotland) Act 2008 (asp 6) (which make the Head of the Scottish Judiciary responsible for maintaining arrangements for securing the efficient disposal of business in the Scottish courts and require compliance with directions given in pursuance of that responsibility).

(3) In section 74(3) (pre-condition for appointment of stipendiary magistrate), for the words “administration of” substitute “ disposal of business in ”.

Court holidays

Court holidays in sheriff courts and justice of the peace courts

59

(1) Section 8 (sittings of sheriff and justice of the peace courts) of the Criminal Procedure (Scotland) Act 1995 (c. 46) is amended as follows.

(2) In subsections (2) and (3), for “10” substitute “ 11 ”.

Part 4 — THE SCOTTISH COURTS AND TRIBUNALS SERVICE

Establishment

The Scottish Court Service

60

(1) There is established a body corporate to be known as the Scottish Courts and Tribunals Service (referred to in this Part as “the SCTS”).

(2) Schedule 3 makes further provision about the SCTS.

Functions

Administrative support for the Scottish courts and judiciary

61

(1) The SCTS has the function of providing, or ensuring the provision of, the property, services, officers and other staff required for the purposes of—

(a) the Scottish courts, and

(b) the judiciary of those courts.

(2) In carrying out that function, the SCTS must—

(a) take account, in particular, of the needs of members of the public and those involved in proceedings in the Scottish courts, and

(b) so far as practicable and appropriate, co-operate and co-ordinate activity with any other person having functions in relation to the administration of justice.

(3) In this Part, “the Scottish courts” has the meaning given by section 2(6).

Administrative support for other persons

62

(1) The SCTS has the function of providing, or ensuring the provision of, the property, services and staff required for the purposes of—

(a) the Lord President in the carrying out of—

(i) functions conferred on the Lord President as Head of the Scottish Judiciary, and

(ia) functions conferred on the Lord President as Head of the Scottish Tribunals,

(ii) other non-judicial functions of the Lord President,

(b) any judicial office holder in the carrying out of functions delegated to the office holder by the Lord President,

(ba) the President of the Sheriff Appeal Court in the carrying out of functions under section 56 of the Courts Reform (Scotland) Act 2014,

(c) the sheriffs principal in the carrying out of their functions under sections 27 and 28 of the Courts Reform (Scotland) Act 2014,

(ca) the President of the Scottish Tribunals in the carrying out of—

(i) functions delegated to the President of the Scottish Tribunals by the Lord President as Head of the Scottish Tribunals, and

(ii) other non-judicial functions of the President of the Scottish Tribunals,

(d) the Public Guardian (established by section 6 of the Adults with Incapacity (Scotland) Act 2000 (asp 4)),

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ea) the Scottish Civil Justice Council,

(f) the Criminal Courts Rules Council,

(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h) such other persons, or persons of such description, as the Scottish Ministers may by order specify.

(2) Before making an order under subsection (1)(h), the Scottish Ministers must consult the Lord President.

Appointment etc. of office holders

63

(1) The Scottish Ministers' functions in relation to the officers mentioned in subsection (2) are transferred to the SCTS.

(2) Those officers are the holders of the following offices—

(a) Accountant of Court,

(b) Principal Clerk of Session,

(d) Principal Clerk of Justiciary,

(e) Depute, Assistant or other Clerk in the Justiciary Office of the High Court of Justiciary,

(f) Macer in the Court of Session and Macer in the High Court of Justiciary,

(g) sheriff clerk,

(h) sheriff clerk depute, and

(i) clerk or assistant clerk of a justice of the peace court.

(3) Those officers are also members of the staff of the SCTS and, accordingly, references in this Act to the staff of the SCTS include, except where the context requires otherwise, reference to those officers.

(4) Schedule 4 contains amendments of enactments consequential on this section.

Payment of remuneration etc. of certain judicial office holders

64

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Provision of advice etc. to the Scottish Ministers

65

(1) The SCTS may give information or advice, or make proposals, to the Scottish Ministers on matters relating to—

(a) the functions of the SCTS, or

(b) the administration of justice in Scotland.

(2) The Scottish Ministers must have regard to such information, advice or proposals.

(3) This section is without prejudice to paragraph 15(2)(c) of schedule 3.

Plan and report

Corporate plan

66

(1) The SCTS must, before the beginning of each planning period, prepare and submit to the Scottish Ministers for approval a corporate plan describing how the SCTS proposes to carry out its functions during the period.

(2) The plan must—

(a) be prepared in such form,

(b) contain such information, and

as the Scottish Ministers may direct.

(3) The Scottish Ministers may approve the plan subject to such modifications as may be agreed between them and the SCTS.

(4) The SCTS must, as soon as possible after the approval of a corporate plan—

(a) lay before the Scottish Parliament a copy of the plan as approved, and

(b) publish the plan in such manner as it thinks fit.

(5) During the planning period to which a corporate plan relates, the SCTS—

(a) may, or

(b) if the Scottish Ministers so direct, must,

review the plan and submit a revised corporate plan to the Scottish Ministers for approval.

(6) In carrying out its functions in any planning period, the SCTS must have regard to the corporate plan for the period.

(7) Subsections (2) to (6) apply to a revised corporate plan as they apply to a corporate plan.

(8) In this section, “planning period” means—

(a) the period beginning with the day on which section 61 comes into force and ending on a date specified by order made by the Scottish Ministers, and

(b) each subsequent period of 3 years.

(9) The Scottish Ministers may by order substitute for the period specified in subsection (8)(b) such other period as they consider appropriate.

Annual report

67

(1) As soon as practicable after the end of each financial year, the SCTS must—

(a) prepare and publish a report on the carrying out of its functions during that year,

(b) send a copy of the report to the Scottish Ministers, and

(2) It is for the SCTS to determine the form and content of each report and the manner in which it is to be published.

(3) In subsection (1), “financial year” means—

(a) the period beginning with the establishment of the SCTS and ending on 31 March next occurring, and

(b) each subsequent period of a year ending on 31 March.

Ministerial powers

Provision of information

68

The SCTS must provide the Scottish Ministers with such information relating to the carrying out of its functions as the Scottish Ministers may require.

Guidance

69

The SCTS must, in carrying out its functions, have regard to any guidance issued by the Scottish Ministers.

Default power

70

(1) Subsection (2) applies if the Scottish Ministers consider—

(a) that the SCTS is—

(i) failing to carry out its functions to such an extent that there is a significant risk to the efficient and effective functioning of the Scottish courts or the Scottish Tribunals, or

(ii) is carrying them out in such a way that there is such a risk, and

(b) that in order to avoid or mitigate that risk it is necessary that the functions be carried out instead by them.

(2) Where this subsection applies, the Scottish Ministers may by order provide for the functions of the SCTS to be carried out instead by them.

(3) So far as necessary for the purpose of the carrying out by the Scottish Ministers of the functions of the SCTS by virtue of subsection (2)—

(a) references in any enactment to the SCTS are to be read as references to the Scottish Ministers,

(b) staff of the SCTS are to be treated as if they were staff of the Scottish Ministers, and

(4) Subsection (3) is subject to any provision made in an order under subsection (2).

(5) A statutory instrument containing an order under subsection (2) (other than one to which subsection (7) applies)—

(a) is to be laid before the Scottish Parliament after being made, and

(b) unless earlier revoked, ceases to have effect at the end of the period of 40 days beginning with the day on which it is made if it is not by then approved by resolution of the Parliament.

(6) Subsection (7) applies to a statutory instrument containing an order under subsection (2) consisting only of—

(a) provision revoking an earlier order under subsection (2), or

(b) such provision and provision made by virtue of section 71(2).

(7) A statutory instrument to which this subsection applies is subject to annulment in pursuance of a resolution of the Parliament.

(8) If an order under subsection (2) ceases to have effect by virtue of subsection (5)(b)—

(a) that does not affect—

(i) the validity of anything done by or in relation to the Scottish Ministers by virtue of the order, or

(ii) the power to make a further order under subsection (2), and

(b) the Scottish Ministers may by order make such consequential provision as they consider necessary or expedient.

(9) In calculating a period of 40 days for the purpose of subsection (5)(b), no account is to be taken of any time during which the Parliament is—

(a) dissolved, or

(b) in recess for more than 4 days.

Part 5 — General

Orders and regulations

71

(1) Any power of the Scottish Ministers to make orders or regulations under this Act is exercisable by statutory instrument.

(2) Any such power includes power to make—

(a) such incidental, supplementary, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,

(b) different provision for different purposes.

(3) A statutory instrument containing an order or regulations under this Act except—

(a) an order under section 70(2), 76(1) or paragraph 2(5) of schedule 3, and

(b) where subsection (4) applies, an order under section 74(1),

is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(4) No—

(a) order under paragraph 2(5) of schedule 3, or

(b) order under section 74(1) containing provisions which add to, replace or omit any part of the text of an Act,

is to be made unless a draft of the statutory instrument containing the order has been laid before, and approved by resolution of, the Parliament.

Interpretation

72

In this Act—

“the Inner House” means the Inner House of the Court of Session,

“the Lord President” means the Lord President of the Court of Session,

“office of part-time sheriff” means an appointment under section 8(1), or a reappointment under section 9(1) or (3), of the Courts Reform (Scotland) Act 2014, and references to suspension from that office are to be construed accordingly,

“ office of part-time summary sheriff ” means an appointment under section 10(1), or a reappointment under section 11(1) or (3), of the Courts Reform (Scotland) Act 2014, and references to suspension from that office are to be construed accordingly,

“office of temporary judge” means an appointment under section 20B(1) (temporary judges), and references to removal or suspension from that office are to be construed accordingly,

“office of temporary sheriff principal” means an appointment under section 6(2) of the Courts Reform (Scotland) Act 2014, and references to suspension from that office are to be construed accordingly.

Consequential amendments and repeals

73

Schedule 5, which contains consequential amendments and repeals of enactments, has effect.

Ancillary provision

74

(1) The Scottish Ministers may by order make such supplementary, incidental or consequential provision as they consider appropriate for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.

(2) An order under subsection (1) may modify any enactment (including this Act).

Transitional provision etc.

75

(1) The Scottish Ministers may by order make such provision as they consider necessary or expedient for transitory, transitional or saving purposes in connection with the coming into force of any provision of this Act.

(2) An order under subsection (1) may modify any enactment (including this Act).

Commencement and short title

76

(1) The provisions of this Act, other than this section and sections 71, 72, 74 and 75, come into force in accordance with provision made by order by the Scottish Ministers.

(2) This Act may be cited as the Judiciary and Courts (Scotland) Act 2008.

SCHEDULE 1

Status of the Board

1

The Board is not a servant of the Crown and has no status, immunity or privilege of the Crown.

Membership

2

The Board consists of—

(a) judicial members appointed by the Lord President,

(b) legal members appointed by the Scottish Ministers, and

The judicial and legal members

3

(1) The judicial members comprise—

(a) two persons, each holding the office of judge of the Court of Session (other than the Lord President and the Lord Justice Clerk),

(b) one person holding the office of sheriff principal, ...

(d) one person holding the position of Chamber President or of Vice-President within the Scottish Tribunals.

(2) The legal members comprise—

(a) one advocate practising as such in Scotland, ...

(b) one solicitor practising as such in Scotland , and

(i) an advocate practising as such in Scotland, or

(ii) a solicitor practising as such in Scotland.

(3) Each of the descriptions of members mentioned—

(a) in sub-paragraph (1) is referred to in this schedule as a “judicial membership category”, and

(b) in sub-paragraph (2) is referred to in this schedule as a “legal membership category”.

(4) The Scottish Ministers may by order modify sub-paragraph (1) or (2).

(5) However, an order under sub-paragraph (4) may not remove any judicial or legal membership category other than one added by such an order.

(6) For the purposes of sub-paragraph (1)(d)—

“ Scottish Tribunals ” is to be construed in accordance with the Tribunals (Scotland) Act 2014,

“ Chamber President ” means Chamber President in the First-tier Tribunal as referred to in that Act and “ Vice-President ” means Vice-President of the Upper Tribunal as referred to in that Act.

The lay members

4

(1) The number of lay members is to be equal to the total number of judicial and legal members.

(2) Each lay member is to be an individual who—

(a) is resident in Scotland,

(b) is not a solicitor or advocate practising as such in Scotland, and

Persons disqualified from membership

5

A person is disqualified from appointment, and from holding office, as a member if the person is or becomes—

(a) a member of the House of Commons,

(b) a member of the Scottish Parliament,

(d) a Minister of the Crown,

(e) a member of the Scottish Executive, or

(f) a civil servant.

Term of office

6

(1) A member holds office for such period of not more than 4 years as—

(a) the Lord President in the case of a judicial member, or

(b) the Scottish Ministers in the case of a legal or lay member,

at the time of appointment, may determine.

(2) A person who is or has been a member may be reappointed (whether in the same or a different capacity) for further periods.

(3) However, a person may not hold office as a member for periods (whether or not consecutive) totalling more than 8 years.

(4) A member's appointment ceases—

(a) on expiry of the member's period of appointment,

(b) on the member's becoming disqualified from holding office as a member,

(c) in the case of a judicial or legal member, on the member's ceasing to fall within the judicial or legal membership category under which the member was appointed, or

(d) in the case of a lay member, on the member's ceasing to be qualified for appointment as a lay member.

(5) However, despite the occurrence (or likely occurrence) of an event mentioned in sub-paragraph (4) in relation to a member—

(a) the Lord President in the case of a judicial member, or

(b) the Scottish Ministers in the case of a legal or lay member,

may direct that the member is to continue to hold office for such period, not exceeding 6 months, as the Lord President or the Scottish Ministers, as the case may be, may direct.

(6) Such a direction may be given in relation to a member before or after the occurrence of an event mentioned in sub-paragraph (4).

(7) A person whose appointment as a member ceases by virtue of sub-paragraph (4) or (5) may nonetheless continue to act as a member so far as that is necessary for the purposes of concluding consideration of a judicial appointment which the Board is in the course of considering at the time the person's appointment ceases.

Resignation of members

7

(1) A member may resign office by giving notice in writing—

(a) in the case of a judicial member, to the Lord President, and

(b) in the case of a legal or lay member, to the Scottish Ministers.

(2) A member giving notice—

(a) under sub-paragraph (1)(a) must send a copy of the notice to the Scottish Ministers,

(b) under sub-paragraph (1)(b) must send a copy of the notice to the Lord President.

(3) Notice under sub-paragraph (1) must be given at least 6 months before the proposed date of resignation unless a shorter period is agreed with the person to whom notice is to be given under that sub-paragraph.

Removal of members

8

(1) The Lord President may, by notice in writing, remove a judicial member from office if satisfied, after consulting the Chairing Member and the Scottish Ministers, that sub-paragraph (4) applies in relation to the member.

(2) The Scottish Ministers may, by notice in writing, remove a legal or lay member from office if satisfied, after consulting the Chairing Member (unless that is the member concerned) and the Lord President, that sub-paragraph (4) applies in relation to the member.

(3) A member may not be removed from office under sub-paragraph (1) or (2) without the member being afforded an opportunity to be heard by the Lord President or, as the case may be, the Scottish Ministers.

(4) This sub-paragraph applies if the member—

(a) has failed without reasonable excuse to discharge the functions of a member for a continuous period of 6 months,

(b) has been convicted of any offence,

(d) is otherwise unfit to be a member or unable for any reason to discharge the functions of a member.

(5) For the purposes of sub-paragraph (4)(c), a member becomes insolvent on—

(a) the approval of a voluntary arrangement proposed by the member,

(b) being adjudged bankrupt,

(d) the member's granting a trust deed for creditors.

Chairing Member: appointment and tenure

9

(1) The Scottish Ministers must appoint one of the lay members to chair the Board.

(2) That member is referred to in this Act as the “Chairing Member”.

(3) The Chairing Member holds office as such for such period of not more than 4 years as the Scottish Ministers, at the time of appointment, may determine.

(4) The Chairing Member's appointment as such ceases on the Chairing Member's ceasing to be a member of the Board.

(5) A member who is or has been the Chairing Member may be reappointed for further periods.

Chairing Member: resignation, removal, vacancy etc.

10

(1) The Chairing Member may resign office as such by giving notice in writing to the Scottish Ministers.

(2) The Scottish Ministers may, by notice in writing, remove the Chairing Member from office if, after consulting the Lord President, they are satisfied that the member—

(a) has failed without reasonable excuse to discharge the functions of the Chairing Member for a continuous period of 6 months, or

(b) is otherwise unfit to be the Chairing Member or unable for any reason to carry out the functions of the Chairing Member.

(3) During any period when there is a vacancy in the office of the Chairing Member, the functions of the Chairing Member may be carried out by another lay member nominated by the Board.

(4) During any period when the Chairing Member is for any reason unable to act, the functions of the Chairing Member may be carried out by another lay member nominated—

(a) by the Chairing Member, or

(b) if the Chairing Member is unable to make such a nomination, by the Board.

(5) Sub-paragraphs (1), (2) and (4) apply to a member carrying out functions by virtue of sub-paragraph (3) or (4) as they apply to the Chairing Member.

Temporary members

11

(1) Where the Chairing Member is satisfied that a member of the Board (“the absent member”) is likely to be unable to discharge the functions of a member for a period of time not exceeding 6 months (“the period of absence”), the Chairing Member may—

(a) where the absent member is a judicial member, request that the Lord President appoint an individual to be a temporary member of the Board,

(b) where the absent member is a legal or lay member, request that the Scottish Ministers appoint an individual to be a temporary member of the Board.

(2) On receipt of a request under sub-paragraph (1), the Lord President or, as the case may be, the Scottish Ministers may, if satisfied that it is necessary for the carrying out by the Board of its functions during the period of absence, appoint an individual to be a temporary member in place of the absent member during that period.

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