Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Judiciary and Courts (Scotland) Act 2008

Type Act of the Scottish Parliament

Publication 2008-10-29

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Judicial independence

Divisions of the Inner House

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(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

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(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

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(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

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(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

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(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

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(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

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(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

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(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

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(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

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(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

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(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

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(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

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(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.

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