Office of Public Sector Information
84.This section substitutes sections 12A to 12F in place of the existing section 12 of the 1971 Act bringing the provisions into line with that proposed for judges in Part 2 Chapter 5. Section 12 of the 1971 Act provided for the removal of sheriffs from office. No provision is made in the Scotland Act 1998 for removal of sheriffs unlike the position with judges. Section 11C of the 1971 Act (removal of part-time sheriffs from office) is repealed by paragraph 4(3) of Schedule 5 to the Act as these new sections also cover part-time sheriffs.
85.New Section 12A provides that the First Minister must set up a tribunal to investigate and report on whether a person is unfit to hold judicial office by reason of inability, neglect of duty or misbehaviour where requested to do so by the Lord President or in other such circumstances as he thinks fit. Subsection (2) of the new section 12A provides that sheriffs principal, sheriffs and part-time sheriffs are all subject to the jurisdiction of such tribunals. Subsection (3) of the new section 12A provides that a tribunal may only be constituted if the Lord President has been consulted. Subsections (4) to (8) provide that the tribunal is to consist of 1 judge who must be a member of the Judicial Committee of the Privy Council, 1 sheriff principal or sheriff, 1 advocate or solicitor of 10 years experience and 1 lay member; that the selection of members is to be made by the First Minister with the agreement of the Lord President and that the member of the JCPC is to chair the tribunal.
86.New section 12B provides for the suspension by the Lord President or the First Minister of the sheriff principal, sheriff or part-time sheriff who is being or is to be investigated. The Lord President has the power to suspend where he or she has requested the First Minister to set up a tribunal. The First Minister has the power to suspend where the tribunal recommends to him or her that the person should be suspended.
87.New section 12C makes the same provision to that for judges in section 37.
88.New section 12D makes the same provision to that for judges in section 38.
89.New section 12E provides that the First Minister may remove a sheriff principal, sheriff or part-time sheriff from office following a report from a tribunal to the First Minister that the person is unfit by reason of inability, neglect of duty or misbehaviour. That report must be laid before the Scottish Parliament. In addition, the First Minister may only remove a sheriff principal or sheriff from office by order made by statutory instrument.
90.This section amends section 71 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (“the 2007 Act”) to provide that the provisions as respects the tribunal (including procedures for the tribunal and the tribunal’s ability to suspend a JP during an investigation) and authorising a specified body or class of persons to recommend that an investigation be carried out should be made by the Court of Session by act of sederunt instead of by Scottish Ministers.
91.This section amends section 69 of the 2007 Act to transfer responsibility for training and appraisal of justices of the peace from Scottish Ministers to the Lord President.
92.This section amends section 1 of the Court of Session Act 1988 (“the 1988 Act”) by inserting a new subsection (3A) which places a requirement on the Scottish Ministers to consult the Lord President before making an order increasing the number of judges in the Court of Session. Subsection (3) retains the affirmative resolution procedure and updates the terminology to refer to the Scottish Parliament.
93.This section amends section 2 of the 1988 Act to require the Scottish Ministers to consult the Lord President before making an order under subsection (2A) altering the number of senior judges in the two Divisions.
94.This section provides for the quorum of a Division of the Inner House considering solely procedural matters to be set by act of sederunt. It does so by inserting a new act of sederunt making power regarding quorum in section 5(ba) of the 1988 Act. This is intended to provide the Court of Session with a flexible power to make provision for the quorum of judges where a Division is dealing only with procedural matters. For example, the quorum may be reduced to 1 judge when dealing with only procedural matters. There is a consequential amendment to section 2(3) of the 1988 Act to remove a reference to an extra Division being composed of 3 judges. In addition, provision regarding which judge should preside over an extra Division, and sign its judgments and interlocutors, has been shifted from section 2(3) to the new section 5(ba) power.
95.Section 15(1) of the 1971 Act confers on sheriffs principal the responsibility for ensuring the speedy and efficient disposal of business in the sheriff courts in their sheriffdoms. Subsection (2) of section 47 replaces section 15 of the 1971 Act. The new section 15(1) re-states this responsibility, bringing the wording in line with the wording of the Lord President’s responsibility in section 2(2)(a). The new subsections (2) and (3) of section 15 re-state the existing section 15(2) of the 1971 Act. The new section 15(4) makes it clear how this responsibility of sheriffs principal and their direction making power relates to the Lord President’s overarching responsibility in section 2(2)(a) and the Lord President’s direction making power in section 2(3).
96.Section 16 of the 1971 Act sets out sheriffs principals’ powers in respect of the duties and leave of absence of sheriffs, to support them in their responsibilities for the speedy and efficient disposal of business in the sheriff courts. These powers are subject to the direction of the Scottish Ministers. Subsection (3) of section 47 amends section 16 of the 1971 Act to remove the direction making power of the Scottish Ministers and to make this function subject to Lord President’s overarching responsibility in section 2(2)(a) and the Lord President’s direction making power in section 2(3).
97.Section 17 of the 1971 Act provides that a sheriff principal may fix sittings and business of sheriff courts in his or her sheriffdom and sessions for civil business. Subsection (4) of section 47 amends section 17 to make this function subject to the Lord President’s overarching responsibility in section 2(2)(a) and the Lord President’s direction making power in section 2(3).
98.Section 20 of the 1971 Act provides that the Lord Advocate may issue instructions to procurators fiscal under section 8(1) of the Sheriff Courts and Legal Officers (Scotland) Act 1927 (c.35) for the purpose of ensuring the speedy and efficient disposal of business in the sheriff courts. Subsection (5) of section 47 amends the wording of section 20 of the 1971 Act to bring it into line with the responsibilities imposed on the Lord President in section 2(2)(a) of the Act and on sheriffs principal in the amended section 15 of the 1971 Act. There is no change in substance.
99.Section 60 establishes a body corporate to be known as the SCS. Section 61 gives the SCS the function of providing the property, services, officers and other staff required by the Scottish Courts (including the sheriff courts) and the judiciary of those courts. Scottish Ministers role in section 1 of the 1971 Act is therefore redundant and is repealed by this section. This section also repeals the Scottish Ministers’ power to give administrative directions in section 9 of the 1971 Act as this role now rests with the Lord President under section 2(3).
100.In recognition of the Scottish Ministers duties and powers in relation to sheriff courts, section 18 of the 1971 Act provided them with a default power which enabled them to step in and take over the functions of a sheriff principal where they considered that he or she was exercising his or her functions in such a way as to prejudice the efficient disposal of business in, or organisation or administration of, the sheriff courts within their sheriffdom or that their actions were not in the interests of the public. The power was intended for use in the case of significant malfunction, for example a sheriff principal issuing an arbitrary instruction excluding certain types of cases from being heard within the courts of their sheriffdom. This section repeals section 18 of the 1971 Act and inserts a new section 17A in that Act which provides the Lord President with an equivalent default power.
101.There are at present 6 sheriffdoms in Scotland, each headed by a sheriff principal. Scottish Ministers have powers under section 2 of the 1971 Act to alter the boundaries of these sheriffdoms, to form new sheriffdoms and to provide for the abolition of sheriffdoms. These powers are exercisable by order. The Act shifts responsibility for the deployment of the judiciary to the Lord President in his capacity as head of the Scottish judiciary and the SCS becomes responsible for the provision and resourcing of courts in Scotland. Section 50 therefore makes the exercise of this power subject to the consent of the Lord President for all alterations and subject to the consent of the SCS where an order includes provision for the abolition of any office, the alteration of sheriff court districts, the formation of new districts, the abolition of districts or are that sheriff courts shall be held or shall cease to be held at any place. .The SCS’s role reflects the fact that such changes will have an impact on its budget. Subsection (3) provides that before giving such consent the SCS must consult such persons as it considers appropriate. Subsection (6) provides that such an order shall be subject to the negative resolution procedure of the Scottish Parliament.
102.Section 3 of the 1971 Act provides that it is for the Scottish Ministers to decide the arrangement of sheriff court districts and where sheriff courts should be held. These powers are exercisable by order. Section 51 amends section 3 to provide that the exercise of this power is to be subject to the consent of the Lord President and the SCS . As with the amendments in section 50 subsection (2) provides that before consenting to such an order the SCS must consult such persons as it considers appropriate. Subsection (46) provides that such an order shall be subject to the negative resolution procedure of the Scottish Parliament.
103.This section repeals section 8 of the 1971 Act as the Scottish Ministers will no longer have a role in respect of the administration of sheriff courts by virtue of the repeal of sections 1 and 9 of the 1971 Act in section 48 of the Act and therefore their power under section 8 to appoint a sheriff to assist them in relation to the organisation and administration of sheriff courts is no longer appropriate.
104.This section replaces references to the Scottish Ministers in section 10 of the 1971 Act with references to the Lord President. It moves the power and responsibility for the movement of sheriffs principal and sheriffs across sheriffdoms from the Scottish Ministers to the Lord President. This is in line with the Lord President’s role of securing the efficient disposal of business in all of the Scottish courts, including the sheriff courts, in section 2(2)(a).
105.Section 13 of the 1971 Act gives the Scottish Ministers functions in relation to residence and leave of absence of sheriffs principal. In line with the Lord President’s responsibilities in section 2(2)(a), this section amends section 13 of the 1971 Act to give that role to the Lord President. Subsection (3) of section 54 amends section 13(2) to clarify that the reference to seven weeks leave in that section is intended to be holiday leave. Subsection (4) adds a new subsection (3) to section 13 to clarify that any other leave should be approved by the Lord President. This would cover, for example, study leave and attendance at conferences.
106.Section 14 of the 1971 Act provides that the Scottish Ministers may by order prescribe the number of sheriffs to be appointed for each sheriffdom, that they may direct sheriffs as to their residence and as to their sheriff court district. This section amends section 14 by repealing the power to prescribe the number of sheriffs to be appointed for each sheriffdom and transferring the role of the Scottish Ministers to the Lord President.
107.Section 16 of the 1971 Act gives the Scottish Ministers functions in relation to duties and leave of absence of sheriffs. In line with the Lord President’s responsibilities in section 2(2)(a), this section amends section 16 of the 1971 Act to give that role to the Lord President. Paragraph (a) also clarifies that that the reference to seven weeks leave in section 16(2) is to holiday leave. Subsection (3) adds a new subsection (2A) to section 16 to clarify that it is for the sheriff principal of the sheriffdom to approve the leave of absence of a sheriff for any other purpose. This would cover for example study leave and attendance at conferences.
108.Section 59 of the 2007 Act provides the Scottish Ministers with a power to establish Justice of the Peace courts (“JP courts”) by order, with reference to particular sheriff court districts. Before making an order establishing JP courts, the Scottish Ministers must consult the sheriff principal for the relevant sheriffdom. Subsection (5) requires the Scottish Ministers, in deciding whether a JP court is necessary, to take account of the amount of summary criminal business and the capacity of other JP or sheriff courts in the sheriffdom. Subsection (6) provides that, where JP courts have been established, the Scottish Ministers may subsequently, by order, provide for the relocation or disestablishment of a JP court. Subsection (7) provides that, before making such an order, the Scottish Ministers must consult the sheriff principal for the relevant sheriffdom. Section 57(2) amends section 59 to make the exercise of this power subject to the consent of the Lord President and the SCS. Before consenting to such an order the Lord President must consult the sheriff principal and the SCS must consult such persons as it considers appropriate. This reflects the Lord President’s responsibility for securing the efficient disposal of business in the Scottish courts in section 2(2)(a) and the SCS’s responsibility for the provision and resourcing of courts in Scotland.
109.Section 63(2) of the 2007 Act provides that the Scottish Ministers may amend section 6 (2) of the Criminal Procedure (Scotland) Act 1995 (c.46) so that it provides that a JP court (where not constituted by a stipendiary magistrate) is to be constituted by one JP only. Section 57(3) amends section 63 to provide that this power may only be exercised on the recommendation of the Lord President.
110.Section 61 of the 2007 Act places the responsibility for the efficient administration of justice of the peace courts in the sheriffdom on the sheriff principal. In exercising this responsibility, the sheriff principal may issue administrative directions to those involved in the administration of JP courts (other than the Scottish Ministers). The Scottish Ministers may also issue administrative directions for the purpose of ensuring the efficient administration of JP courts, subject to prior consultation with the sheriff principal.
111.Section 58 substitutes a new section 61 in the 2007 Act. This mirrors the provisions made at section 47 in respect of the responsibilities of sheriff principals for sheriff courts, as described at paragraph 96 above. New subsections (2) and (3) give sheriffs principal the power to give administrative directions to any justice of the peace, including part-time justices of the peace, within their sheriffdom and also the staff of the SCS within their sheriffdom - such directions must be complied with. Administrative directions by their nature must be in pursuance of the sheriff principal’s duty to ensure the efficient disposal of business.
112.Subsection (4) recognises the over arching role of the Lord President in respect of the efficient disposal of business across all courts in Scotland and makes the duties and responsibilities of sheriffs principal subject to that role and to the direction giving power of the Lord President at sub-section 2(3).
113.This section enables sheriff principals to specify an additional day’s holiday for court staff. The intention is that this would be used to give court staff a day’s holiday on or around St Andrew’s Day in line with the rest of the public sector.
114.Part 4 of the Act establishes a body corporate known as the Scottish Court Service (“the SCS”) whose functions are to provide the administrative support for the Scottish courts, the judiciary of those courts and certain other specified persons. The existing Executive Agency of the Scottish Government, also known as the SCS, will be replaced by this new body. The new SCS will be part of the Scottish Administration but not part of the Scottish Government (see paragraph below as to the mechanism for achieving this). This is in contrast to the existing SCS which, as an Executive Agency, is part of the Scottish Government and therefore under Ministerial control. The new SCS will consist of 7 judicial members and 6 non-judicial members and will have its own staff of civil servants. It will not be under Ministerial control but it will have to agree a corporate plan with the Scottish Ministers. There is also a default power for the Scottish Ministers to take over the functions of the SCS.
115.Paragraph 1 of Schedule 3 to the Act (which makes further provision about the SCS) provides that the SCS is to be the holder of an office. That paragraph also provides that the SCS is to be the name of both the office-holder and the office itself. An order will be made at Westminster under section 104 of the Scotland Act 1998 (power to make provision consequential on legislation of, or scrutinised by, the Parliament) to include the office known as the SCS within the Scottish Administration.
116.This section provides for the SCS’s principal function of running the court service in Scotland. In doing so the section also provides that they must take into account, in particular, the needs of members of the public and those involved in proceedings in courts and that they must co-operate with others involved in the administration of justice. This latter requirement would cover, for example, cooperation with the Crown Office and Procurator Fiscal Service over the scheduling of criminal cases. The courts covered by this function are the Court of Session, the High Court of Justiciary, the Registration Appeals Court, the Election Court, the Lands Valuation Appeal Court, the sheriff courts, JP courts and such other courts as may be specified by the Scottish Ministers by order.
117.This section provides that the SCS also has the function of providing administrative support for various other persons. In particular subsection (1)(a) provides that the SCS has the function of providing administrative support for the functions conferred on the Lord President as head of the Scottish judiciary under section 2 of the Act and support for the Lord President’s other non-judicial functions. The latter covers the functions carried out by the Lord President’s Private Office in providing support to the Lord President in carrying out a range of statutory and other functions such as powers of appointment, removal and rule-making or rule approval in relation to tribunals and in respect of the Law Society of Scotland, the Scottish Legal Complaints Commission and university ordinances. Subsection (1)(b) provides that the SCS has the function of providing administrative support to the delegate where the Lord President has delegated one or more of his or her functions as head of the Scottish judiciary in section 2 under section 3. Subsection (1)(c) provides that the SCS has the function of providing administrative support to sheriffs principal in carrying out their functions of ensuring the efficient disposal of business in sheriff courts and of the timetabling of business in the sheriff courts in their sheriffdoms.
118.This section transfers the function of appointing various statutory office holders from the Scottish Ministers to the new SCS. Schedule 4 makes the necessary consequential modifications. These office holders are employed by the existing Executive Agency and will transfer to the new body corporate by virtue of paragraph 18 of schedule 3 to the Act.
119.This section amends the 1971 Act, the 1985 Act and the 1990 Act to provide that the SCS will pay remuneration and allowances to temporary sheriffs principal, part-time sheriffs, re-employed retired judges and temporary judges, with the responsibility for determining the level of that remuneration and those allowances remaining with the Scottish Ministers. This is because budgetary responsibility for the use of temporary judges and sheriffs will rest with the SCS.
120.This section makes more specific provision to that more general provision in paragraph 15(2)(c) of schedule 3. That paragraph provides that the SCS may do anything it considers necessary or expedient for the purposes of or in connection with its functions including, in particular, providing information and advice. This section provides that the SCS may give information or advice, or make proposals, to the Scottish Ministers on matters relating to its functions or the administration of justice in Scotland. Furthermore this section provides that the Scottish Ministers must have regard to such information, advice or proposals.
121.This section places various requirements on the SCS in relation to business planning and gives a role to the Scottish Ministers in relation to the form and approval of such plans. The first plan will cover the period from the date the new SCS comes into being until a date to be specified by order. Thereafter plans will be for three year periods, or for such other period as the Scottish Ministers determine by order. Subsection (4)(b) provides for publication of the approved plan (such publication could be on the SCS website).
122.An example of the type of guidance that might be issued under this section is guidance on high level policies and priorities.
123.This section provides for the Scottish Ministers to take over the functions of the SCS in the event of serious failure. In that event all of the functions of the SCS would be taken over by the Scottish Ministers. Such action could be taken immediately by the Scottish Ministers and subsection (2) provides for this to be achieved by order. If not approved by Parliament it would cease to have effect. Subsection (8) provides that any action taken by the Scottish Ministers during a period in which they have taken over the running of the SCS by using this power remains valid where Parliament decides not to affirm the order. This subsection also enables the Scottish Ministers to make consequential provisions arising from Parliament’s decision not to affirm such an order. For example this could be used to enable contracts entered into by the Scottish Ministers in the period they have taken over the running of the SCS to be assigned to the SCS.
124.This section sets out the procedure under which the Scottish Ministers can exercise powers which the Act gives them to make subordinate legislation. All orders and regulations are to be made by statutory instrument (and will be published as such). Most will be subject to the Scottish Parliament's negative resolution procedure. Orders under section 70(2) (default power) are to be made as described in paragraph 124 above. Commencement orders made under section 76(1) are not subject to parliamentary procedure. Orders modifying the membership of the SCS under paragraph 2(4) of schedule 3 and orders which are made under section 74(1) which amend primary legislation are subject to the Scottish Parliament’s affirmative resolution procedure.
125.Paragraph 1 makes it clear that the Board will not be a servant of the crown, which is appropriate given that the Board is set up as an independent entity, not subject to the direction or control of the Scottish Ministers.
126.Paragraph 2 makes provision for 3 categories of members: judicial, legal and lay. Whilst the Scottish Ministers are to appoint the legal and lay members it is for the Lord President to appoint the judicial members.
127.Paragraph 3(1) and (2) sets out who qualifies as a judicial member and who qualifies as a legal member. The Lord President and Lord Justice Clerk are excluded from judicial membership. There are three judicial members and two legal members. Subparagraph (4) provides the Scottish Ministers with an order-making power to modify the judicial or legal membership categories. This power could be used to alter the membership of the Board on a permanent or temporary basis, for example, to add a new category of judicial office or increase the number of members from a particular category. This may be necessary when the Board is asked to deal with a large number of appointments in a short period of time; the Board may require an increased membership to deal with the increased workload. The effect of paragraph 3(5) is that the Scottish Ministers may add judicial and legal members to the Board by order, but may only remove those members already added by order; they may not remove the membership categories set out in subparagraphs (1) and (2).
128.Paragraph 4 provides that the number of lay members should at all times be the same as the combined total of judicial and legal members. This is to preserve the balance of membership on the Board. At commencement of this Act there would be five judicial and legal members on the Board, therefore five lay members. If the numbers of judicial or legal members were increased by order under paragraph 3(4) the number of lay members would increase by equivalent number. Subparagraph (2) sets out 3 criteria which must be fulfilled in order to qualify as a lay member.
129.Under paragraph 5, certain categories of persons are disqualified from membership of the Board. This is to ensure the independence of the Board from political or ministerial influence.
130.Under paragraph 6(1), members will be appointed initially for a period of no more than 4 years. The actual period of appointment is to be determined by the person making the appointment, which would be the Lord President for judicial members and the Scottish Ministers for legal and lay members.
131.Paragraph 6(2) and (3) enable a member to be re-appointed, but a member’s total term of office cannot exceed 8 years. By virtue of paragraph 18, the Code of Practice for Ministerial Appointments to Public Bodies in Scotland (“the Code”), issued by the Commissioner for Public Appointments in Scotland under section 2 of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), applies to legal and lay appointments to the Board. The Code may be revised from time to time, therefore the following explanation of the interaction between paragraph 6 and the Code applies only to the edition of the Code dated April 2006, which is the current Code at the date of introduction of this Act. The Code provides that only one further period of re-appointment to public office is permissible without an open competition to fill the office. Under the Code, read with paragraph 6, a legal or lay member of the Board could be appointed initially for a period of 4 years and then re-appointed for a further 4 years without an open competition being held. The member would then have served the maximum term of office under paragraph 6(3) and could not be re-appointed, even after an open competition. To use a different example, if an individual was initially appointed for 3 years, and perhaps re-appointed without open competition for 2 years, the Code would require the member to re-apply in open competition for any further re-appointment up to their maximum term of office of 8 years under paragraph 6(3).
132.Judicial members’ appointments and re-appointment are subject to paragraph 6(1) to (3); however, the Code does not apply to these appointments because they are made by the Lord President, not by the Scottish Ministers.
133.Paragraph 6(4) sets out the various circumstances in which membership of the Board would cease. These include reasons relating to a change in the status of the member, for example, if any category of member becomes a civil servant or member of the Scottish Parliament they are disqualified from membership by virtue of paragraph 5. Another circumstance in which membership of the Board would cease is if the person no longer has the status which qualified them for the appointment in the first place (for example, a lay member becoming a practising solicitor, or a judge retiring from the Bench or being appointed as a Law Lord).
134.To avoid disruption to the work of the Board, paragraph 6(5) provides that should a member’s tenure come to an end, the Scottish Ministers in the case of legal and lay members and the Lord President in the case of judicial members may direct that a member’s appointment be extended by up to 6 months. This may be helpful in managing the succession of Board members and ensuring continuity of experience.
135.Paragraph 6(7) brings in additional flexibility for membership to be extended (or further extended following a paragraph 6(5) extension) without a direction by the Scottish Ministers or the Lord President, but only where necessary in order for a member to complete consideration of a particular judicial appointment which the Board is dealing with at the time when the member’s appointment ceases. For example, if a shrieval member of the Board was due to retire from the Board during an appointments process, the shrieval member could continue in office until he or she has concluded work on that appointments process.
136.Paragraph 7 sets out the procedure a member wishing to resign should follow. This involves giving notice in writing to whoever appointed them – that is, the Lord President or the Scottish Ministers – and providing a copy of the notice to the other appointing office-holder. For example, a resigning lay member would send their notice to the Scottish Ministers, copied to the Lord President. Sub-paragraph (3) provides that the period of notice is 6 months unless agreed otherwise by office-holder who has appointed the member.
137.Paragraph 8 sets out the procedure for removing a member and the circumstances in which a member may be removed. Responsibility for the removal of judicial members lies with the Lord President. Sub-paragraph (1) provides that removal must be in writing and that the Lord President must consult the Chairing Member of the Board and the Scottish Ministers before satisfying himself that grounds for removal exist. Equivalent procedures are set out at sub-paragraph (2) for the Scottish Ministers in respect of the removal of legal and lay members. However there is no duty to consult the Chairing Member if that member is the subject of the removal. Sub-paragraph (3) provides that a member must be afforded an opportunity to be heard by the Lord President or as the case may be the Scottish Ministers before being removed from office. The grounds for removal are listed at sub-paragraph (4).
138.In the event that one of the grounds for removal is satisfied, removal from office is not mandatory. Paragraph 8(1) and (2) leave the Lord President and the Scottish Ministers with discretion in the matter. For example, if a Board member was convicted of a very minor offence that did not give rise to doubt about their fitness to continue in office, the Lord President or the Scottish Ministers may consider that they need not be removed.
139.The conduct of members of the Board is to fall within the remit of the Standards Commission for Scotland. For that reason paragraph 19 applies the provisions of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7) to the Board. As a devolved public body the Board must produce a code of conduct for its members.
140.Paragraph 9 places a duty on the Scottish Ministers to appoint one of the lay members as chair to the Board. The Chairing Member’s appointment is determined by the Scottish Ministers and is for no longer than 4 years. There is nothing to prevent a member being re-appointed as the Chairing Member, subject to the overall limit of 8 years on their term of office as an ordinary member of the Board under paragraph 6(3).
141.Paragraph 10(1) and (2) make provision for the resignation or removal of the Chairing Member as chair, but not as a member of the board. Paragraph 10(3) to (6) enable the Chairing Member’s role to be filled temporarily from within the Board in the event of a vacancy, or where the Chairing Member is unable to act for any reason.
142.Paragraph 11 makes provision for appointing temporary members to cover periods of absence of Board members, so long as the period of absence does not exceed 6 months. There may be a number of reasons (for example, personal reasons, ill health, other work commitments) why a member is unable to discharge their functions on the Board for a period of time. Under paragraph 11(1) if the Chairing Member is satisfied that the member will be unable to discharge their functions for up to 6 months they may request that the Lord President or the Scottish Ministers appoint a temporary member. Under paragraph 11(3) and (4) the temporary member must fall into the same category as those members they are replacing. For example, if an advocate member is unable to sit on the Board for a period, the temporary member appointed in their place must also be an advocate. Paragraph 11(4)(b) requires temporary lay members to satisfy the general qualification requirements to be a lay member (see paragraph 4(2)).
143.To maintain the legal and lay balance of the Board, paragraph 11(6) makes it clear that during the period of temporary cover, the absent member is not to be counted as a member. The effect of this is that the total number of members of the Board will remain the same. There will be no need to appoint an extra lay member upon the appointment of a temporary legal or judicial member, as might otherwise be required under paragraph 4(1). Under paragraph 11(7) a temporary appointment ceases when the absent member returns or after 6 months, whichever comes first. To ensure that the work of the Board is not unduly disrupted, paragraph 11(8) enables a temporary member to continue acting as a member beyond the 6 month period to conclude any ongoing judicial appointment process with which they are involved, to be concluded. Paragraph 11(9) provides that a temporary member will be otherwise subject to all of the same provisions as apply to an ordinary member of the Board.
144.Paragraph 12 makes very similar provision for substitute members to be appointed where a member of the Board has a conflict of interest that would make it improper for them to be involved in a particular appointment process. It is envisaged that this provision would be used where a member has a close personal relationship with one of the candidates in a particular appointment round.
145.In contrast with paragraph 11, paragraph 12(6) provides that a substitute member does not entirely replace the member who has a conflict of interest; that member may continue to sit on the Board and deal with other matters where no conflict arises. If, for example, the member with the conflict of interest is a judge of the Court of Session, the Board will seek a substitute judge member for that appointment process. There would be nothing to prevent the judge with the conflict of interest from taking part in another appointment process where there is no such conflict, or in any other business of the Board.
146.Paragraph 12(7) provides that a substitute member does not count as a member for the purposes of paragraph 4(1) so there is no need to make any extra lay appointment in the event that a substitute legal or judicial member is appointed, or to make an extra legal or judicial appointment if a substitute lay member is appointed.
147.Under paragraph 13, it is for the Scottish Ministers to determine and pay fees and expenses to Board members. Different fees and expenses may be paid to different categories of member. For example, the Chairing Member may receive a higher rate to reflect the level of responsibility attached to that office. In contrast, judicial members may receive no fees or expenses because they are members of the Board by virtue of the judicial office they hold, for which they already receive a salary.
148.To support the Board in its work, paragraph 14(1) places the Scottish Ministers under a duty to ensure that the Board has sufficient staff, property and services to enable it to carry out its functions. Paragraph 14(2) gives a non-exhaustive list of examples of the services that may be provided to the Board. Appointment of an independent observer could be beneficial where, for example, a person being interviewed for judicial office is a former member of the Board. The presence of an independent observer may reassure other candidates as to the propriety of the Board’s selection procedures in these circumstances. Specialist advice may be sought by the Board in relation to certain judicial appointments. For example, the Chairman of the Land Court is a specialist judicial role, and the Board may wish to seek the advice of a person with expertise in land law for the purposes of that appointment. Paragraph 14(3) obliges the Scottish Ministers to consult the Board about the level of support it needs.
149.Paragraph 15 provides that the Board may determine its own procedure and its own quorum. In order to maintain the legal and lay balance of membership, however, the Chairing Member does not have a casting vote. To assist the Board in the exercise of its functions, paragraph 16 allows the Board to establish committees and to delegate its functions to those committees; however, responsibility for those functions remains with the Board as a whole.
150.Paragraph 17 provides that the validity of the Board’s proceedings cannot be challenged on the grounds of a vacancy in the membership of the Board, a deficiency in the appointment of a member or the disqualification of a member. This ensures that decisions of the Board cannot be challenged on the grounds of such procedural irregularity alone.
151.Paragraph 18 brings the appointment of legal and lay members to the Board within the remit of the Commissioner for Public Appointments in Scotland (“the Commissioner”). Under section 2 of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), the Commissioner must publish a code of practice (“the Code”) for ministerial appointments. The current Code (dated April 2006) includes, amongst other matters, guidelines about the composition of selection panels to select people for appointment to public office. It also provides that a selection panel will normally include a civil servant from the Scottish Government department sponsoring the public body. The Code is silent on whether Ministers or other politicians may sit on a selection panel. The Act goes further than the Code to ensure that appointments to the Board are as free as possible from political and ministerial influence; paragraph 18(2) and (3) provide that, regardless of what the Code as revised from time to time may say, a selection panel for appointment as a member of the Board should not include any of the persons disqualified from membership of the Board under paragraph 5 (that is, MPs, MSPs, MEPs, UK Ministers, Scottish Ministers and civil servants). The Code otherwise applies in full to legal and lay appointments to the Board.
152.Paragraph 19 makes the Board a devolved public body to which the Standards in Public Life etc. (Scotland) Act 2000 (asp 7) (“the 2000 Act”) applies. This means that the Board is under a duty to promote high standards of conduct on the part of its members; that the Board must prepare a code of conduct for members based on a model code prepared by the Scottish Ministers under the 2000 Act; and that the conduct of members is subject to the scrutiny of the Standards Commission for Scotland.
Judiciary and Courts (Scotland) Act 2008