Judiciary and Courts (Scotland) Act 2008

[^key-75729b39ac5c2136a596d3624e9a640f]: Words in s. 60(1) substituted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 4 para. 1(3); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-81d82568b99ef15a0592b936c027ea99]: S. 62(1)(a)(ia) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 4 para. 1(4)(a); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-3d55587e5bb85cc8884bb2c5517bf970]: S. 62(1)(ca) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 4 para. 1(4)(b); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-5f7ebad79cf5270a64c0c62fe624ea72]: S. 62(1)(ba) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 16(4); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-fa305c23f32b725134de3a14deae8989]: Words in s. 62(1)(c) substituted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 9(5); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-3c00a0cca1ce0291336789c59d3bceb4]: S. 64(1)(2) repealed (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 9(2)(d); S.S.I. 2015/77, art. 2(2)(3), Sch.; S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-04925bb7235cdf411811b59ced8189c5]: S. 64(3)(4) repealed (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 38(3); S.S.I. 2015/77, art. 2(2)(3), Sch.; S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-63c0e4467db84b8c8e3bc2945234b6f4]: Words in s. 70(1)(a)(i) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 4 para. 1(5); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-93911e391325249f081f7fbaaf19c865]: Words in s. 72 repealed (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 9(2)(e); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-04ab0f5cafd4aa761d5f0143547ca241]: Words in s. 72 substituted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 9(6)(a); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-34e87889aaef2b8833f3b5763aab2cba]: Words in s. 72 inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 9(6)(b); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-7fbe2c354b6c625749754c0276308735]: Words in s. 72 substituted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 9(6)(c); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-877519cb2ed1da5f28055658485efbf0]: Words in s. 72 substituted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 38(4); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-1649bed8fe2f610f9223b5c827b033b6]: Sch. 1 para. 16A(6A)(6B) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), ss. 131(1)(b), 138(2); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-3f169bee01e2a992d22f48271eb528ae]: Sch. 1 para. 3(6) inserted (1.4.2015) by Tribunals (Scotland) Act 2014 (asp 10), s. 83(2), Sch. 9 para. 12(4)(c) (with Sch. 9 para. 8); S.S.I. 2015/116, art. 2

[^key-9368ecf5ef8056ef7c56c4331e300803]: Word in Sch. 1 para. 3(1) repealed (1.4.2015) by Tribunals (Scotland) Act 2014 (asp 10), s. 83(2), Sch. 9 para. 12(4)(a) (with Sch. 9 para. 8); S.S.I. 2015/116, art. 2

[^key-bd1a6f796afb8734c65b6470bbabcaca]: Sch. 1 para. 3(1)(d) inserted (1.4.2015) by Tribunals (Scotland) Act 2014 (asp 10), s. 83(2), Sch. 9 para. 12(4)(b) (with Sch. 9 para. 810(1)(a)); S.S.I. 2015/116, art. 2

[^key-7a4740669fa76c6b82e0df28a60b6bb6]: Sch. 3 para. 1 repealed (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 4 para. 1(7); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-46af8bbb3c515dfe376d976145eff603]: Sch. 3 para. 13(2)(aa) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 4 para. 1(10); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-8d56c873fed98529e10137d44985a6ca]: Sch. 3 para. 13(2)(aa) modified (temp.) (2.2.2015 for specified purposes, 1.4.2015 in so far as not already in force) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 4 para. 3(3); S.S.I. 2015/12, art. 2; S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-2529bd9b9eaf2e29870212383a450ae5]: Sch. 3 para. 20(2)(a)(ia) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 4 para. 1(11); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^key-87c5acc2fffe08f60e154bad068d2804]: Sch. 5 para. 2 repealed (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 9(2)(f); S.S.I. 2015/77, art. 2(2)(3), Sch.

[^M_I_3472b645-0cac-41e7-f3c7-eb47c4fe97f9]: S. 64 in force at 1.4.2010 by S.S.I. 2010/39, art. 2(b), Sch.

[^key-02a58a31fee4d1d8412e7c53ac15114f]: S. 43(2)(h) repealed (1.4.2016) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 41; S.S.I. 2016/13, art. 2, Sch.

[^key-ca8a327d66305c1924d13f0140ca6422]: Words in sch. 3 para. 2(2)(e) substituted (27.4.2020) by The Scottish Courts and Tribunals Service (Judicial Members) Amendment Order 2020 (S.S.I. 2020/111), arts. 1, 2

[^key-8cd26fccbf6a5a2ddef42f94bf2a465f]: S. 10(1)(fzc) inserted (1.10.2020) by Management of Offenders (Scotland) Act 2019 (asp 14), ss. 46(3), 63(2); S.S.I. 2020/283, reg. 2(k)

[^key-8e68066f85ce004828cc940fba41bc83]: Words in s. 20G(1) inserted (10.3.2022 for specified purposes, 10.5.2022 in so far as not already in force) by Public Service Pensions and Judicial Offices Act 2022 (c. 7), s. 131(1)(4)(b)(ii), Sch. 2 para. 20(2)

[^key-b9bb825a1276c779502cd438f4dc5620]: Words in s. 20G(2) inserted (10.3.2022 for specified purposes, 10.5.2022 in so far as not already in force) by Public Service Pensions and Judicial Offices Act 2022 (c. 7), s. 131(1)(4)(b)(ii), Sch. 2 para. 20(3)

[^key-72c87fa3014a4aa05353a6189cf8c6ed]: Words in sch. 1 para. 3(1)(a) substituted (4.11.2022) by The Judicial Appointments Board for Scotland (Membership) Modification Order 2022 (S.S.I. 2022/268), arts. 1, 2(2)(a)

[^key-1957efb4c060285f8123319166caf33d]: Word in sch. 1 para. 3(2) omitted (4.11.2022) by virtue of The Judicial Appointments Board for Scotland (Membership) Modification Order 2022 (S.S.I. 2022/268), arts. 1, 2(2)(b)

[^key-bf29f406f025f54d93fc319f2e24acfc]: Sch. 1 para. 3(2)(c) and word inserted (4.11.2022) by The Judicial Appointments Board for Scotland (Membership) Modification Order 2022 (S.S.I. 2022/268), arts. 1, 2(2)(c)

Guarantee of continued judicial independence

Delegation of functions

20A

• (1) An individual is qualified for appointment as a judge of the Court of Session if the individual—

• (a) immediately before the appointment—

• (i) held the office of sheriff principal or sheriff, and

• (ii) had held office as either sheriff principal or sheriff throughout the period of 5 years immediately preceding the appointment, or

• (b) at the time of appointment—

• (i) is a solicitor having a right of audience in the Court of Session or the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980 (rights of audience), and

• (ii) has been such a solicitor throughout the period of 5 years immediately preceding the appointment.

• (2) Subsection (1) does not affect an individual's qualification for appointment as a judge of the Court of Session by virtue of article xix of the Union with England Act 1707.

20B

• (1) The Scottish Ministers may appoint an individual to act as a judge of the Court of Session; and an individual so appointed is to be known as a “temporary judge”.

• (2) An individual appointed under subsection (1) may also, by virtue of the appointment, act as a judge of the High Court of Justiciary.

• (3) The Scottish Ministers may appoint an individual under subsection (1) only if—

• (a) the individual is qualified for appointment as a judge of the Court of Session, and

• (b) the Scottish Ministers have consulted the Lord President before making the appointment.

• (4) Subject to section 20C, an appointment as a temporary judge lasts for 5 years.

• (5) Subject to subsection (6), an individual appointed under subsection (1) is, while acting as a judge of the Court of Session or the High Court of Justiciary, to be treated for all purposes as a judge of that Court and may exercise the jurisdiction and powers that attach to that office.

• (6) Such an individual is not to be treated as a judge of the Court of Session for the purposes of any enactment or rule of law relating to—

• (a) the appointment, tenure of office, retirement, removal or disqualification of judges of that Court (including, without limiting that generality, any enactment or rule of law relating to the number of judges who may be appointed),

• (b) the remuneration, allowances or pensions of such a judge.

• (7) The appointment of an individual under subsection (1) does not affect—

• (a) any appointment of the individual as a sheriff principal or sheriff, or

• (b) the individual's continuing with any business or professional occupation not inconsistent with the individual acting as a judge.

20C

• (1) A temporary judge whose appointment comes to an end by virtue of the expiry of the 5 year period mentioned in section 20B(4) is to be reappointed unless—

• (a) the temporary judge declines reappointment,

• (b) the Lord President has made a recommendation to the Scottish Ministers against the reappointment, or

• (c) the temporary judge has sat for fewer than 50 days in total in that 5 year period.

• (2) Section 20B (apart from subsection (3)) applies to a reappointment under subsection (1) as it applies to an appointment.

• (3) A temporary judge whose appointment comes to an end by resignation under section 20D may be reappointed.

• (4) Section 20B applies to a reappointment under subsection (3) as it applies to an appointment.

20D

• (1) A temporary judge may resign at any time by giving notice to that effect to the Scottish Ministers.

• (2) An individual's appointment as a temporary judge ends—

• (a) when the individual resigns in accordance with subsection (1),

• (b) when the individual retires from office, or

• (c) if the individual is removed from office as such under section 39 (temporary judges: removal from office).

20E

• (1) The Lord President may appoint a qualifying former judge to act as a judge of the Court of Session.

• (2) An individual appointed under subsection (1) may also, by virtue of the appointment, act as a judge of the High Court of Justiciary.

• (3) An individual so appointed may act as a judge only during such periods or on such occasions as the Lord President may determine.

• (4) The Lord President may make an appointment under subsection (1) only if it appears to the Lord President to be expedient as a temporary measure in order to facilitate the disposal of business in the Court of Session or the High Court of Justiciary.

• (5) A “qualifying former judge” is an individual who—

• (a) has ceased to hold the office of—

• (i) judge of the Court of Session other than by virtue of section 95(6) of the Scotland Act 1998, or

• (ii) Justice of the Supreme Court or President or Deputy President of that Court and who, at the time of being appointed to the office in question, was eligible for appointment as a judge in the Court of Session, and

• (b) has not reached the age of 75.

20F

• (1) Subject to subsection (2), an individual's appointment under section 20E(1) lasts until recalled by the Lord President.

• (2) An individual's appointment under section 20E(1) ceases when the individual reaches the age of 75.

• (3) Despite the ending of an individual's appointment under section 20E(1)—

• (a) the individual may continue to deal with, give judgment in or deal with an ancillary matter relating to, a case begun before the individual while acting under that appointment,

• (b) so far as necessary for that purpose, and for the purpose of any subsequent proceedings arising out of the case or matter, the individual is to be treated as acting or, as the case may be, having acted under that appointment.

• (4) Subject to subsection (5), an individual appointed under section 20E(1) is, while acting as a judge of the Court of Session or the High Court of Justiciary, to be treated for all purposes as a judge of that Court and may exercise the jurisdiction and powers that attach to that office.

• (5) Such an individual is not to be treated as a judge of the Court of Session for the purposes of any enactment or rule of law relating to—

• (a) the appointment, tenure of office, retirement, removal or disqualification of judges of that Court (including, without limiting that generality, any enactment or rule of law relating to the number of judges who may be appointed),

• (b) the oaths to be taken by such judges,

• (c) the remuneration, allowances or pensions of such a judge.

20G

• (1) The Scottish Courts and Tribunals Service (“the SCTS”) is to pay to an individual appointed under section 20B(1) or 20E(1) such remuneration and such allowances as the Scottish Ministers may determine.

• (2) The Scottish Ministers may determine different amounts of remuneration and different amounts of allowances for—

• (a) different individuals so appointed, or

• (b) different descriptions of individuals so appointed.

• (3) The SCTS may pay to an individual appointed under section 20B(1) or 20E(1) such sums as it may determine in respect of expenses reasonably incurred by the individual in the performance of, or in connection with, the individual's duties.

• (4) The SCTS may—

• (a) determine the circumstances in which such sums may be paid, and

• (b) determine different circumstances for different individuals.

Powers of Lord President

Training and appraisal of justices of the peace

Repeal of certain responsibilities of Scottish Ministers

Sheriff principal's responsibility

Court holidays in sheriff courts and justice of the peace courts

The Scottish Courts and Tribunals Service

Administrative support for the Scottish Tribunals and their members etc.

61A

• (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 Tribunals,

• (b) the members of those Tribunals, and

• (c) such other tribunals (and their members) as the Scottish Ministers may by order specify.

• (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 tribunals, 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, references to—

• (a) the Scottish Tribunals are to the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland,

• (b) the members of the Scottish Tribunals are to be construed in accordance with the Tribunals (Scotland) Act 2014.

Interpretation

Appointment of persons to assist the Board

13A

• (1) The Board may appoint persons (other than Board members) to assist the Board with the carrying out of its functions.

• (2) The Board may appoint persons under sub-paragraph (1) as—

• (a) legal assistants, or

• (b) lay assistants.

• (3) A person may be appointed as a legal assistant if the person is a solicitor or advocate practising as such in Scotland.

• (4) A person may be appointed as a lay assistant if the person is eligible for appointment as a lay member of the Board.

• (5) It is for the Board to determine the number of persons who may be appointed under this paragraph.

• (6) A person who is disqualified from membership of the Board by virtue of paragraph 5 is also disqualified from being a legal assistant or a lay assistant.

• (7) Persons appointed under this paragraph are to be appointed for such period of not more than 3 years as the Board may determine.

• (8) At the end of a period of appointment, a person may be reappointed.

• (9) A person appointed under this paragraph may resign by giving notice in writing to the Board.

• (10) The Chairing Member may, by notice in writing, rescind a person's appointment under this paragraph if satisfied that the person—

• (a) has been convicted of any offence,

• (b) has become insolvent, or

• (c) is otherwise unfit to be a legal assistant or, as the case may be, a lay assistant or unable for any reason to discharge the functions of such an assistant.

• (11) Each person appointed under this paragraph is entitled to such fees and expenses, if any, as the Scottish Ministers may determine.

• (12) It is for the Scottish Ministers to pay those fees and expenses.

Powers and conduct of persons appointed to assist the Board

13B

• (1) A person appointed under paragraph 13A(1) as a legal assistant may, so far as authorised by the Board, do anything that a legal member of the Board may do, other than take part in a decision of the Board to recommend an individual for appointment.

• (2) A person appointed under paragraph 13A(1) as a lay assistant may, so far as authorised by the Board, do anything that a lay member of the Board may do, other than take part in a decision of the Board to recommend an individual for appointment.

• (3) The Board must issue (and may from time to time revise) a code of conduct for persons appointed under paragraph 13A(1).

• (4) Persons appointed under paragraph 13A(1) must have regard to the provisions of the code of conduct while assisting the Board in the carrying out of its functions.

Proceedings relating to the Scottish Tribunals

16A

• (1) Sub-paragraph (2) applies where the Board is exercising any function under this Act in connection with a position mentioned in section 10(2A).

• (2) At least one member of the Scottish Tribunals is to take part in any proceedings relating to the function (whether or not also a member of the Board).

• (3) It is for the President of Tribunals to select a member of the Scottish Tribunals to take part as mentioned in sub-paragraph (2).

• (4) Before making a selection under sub-paragraph (3), the President of Tribunals must consult the Chairing Member.

• (5) Sub-paragraph (6) applies where a person taking part as mentioned in sub-paragraph (2) is not a member of the Board.

• (6) The person is to be treated as if a member of the Board for the purposes of—

• (a) sections 11 to 15 and 17, and

• (b) paragraphs 5, 12 and 13 of this schedule.

• (6A) Sub-paragraph (6B) applies if—

• (a) the Board is exercising any function under this Act in connection with a position mentioned in section 10(2A),

• (b) the Board authorises a person appointed under paragraph 13A(1) to assist it in relation to any proceedings relating to the function, and

• (c) the person authorised to assist the Board in relation to the proceedings is a member of the Scottish Tribunals.

• (6B) The member of the Scottish Tribunals selected under sub-paragraph (3) may elect not to take part in the proceedings in respect of which the assistant is authorised to assist.

• (7) The Board may not make a determination under paragraph 15 which is inconsistent with this paragraph.

• (8) In this paragraph, “ President of Tribunals ” is to be construed in accordance with the Tribunals (Scotland) Act 2014 and the references to a member of the Scottish Tribunals are to be construed in accordance with section 13(3) of that Act.