Office of Public Sector Information

153.Paragraph 20 adds the Board to Part 2 of Schedule 2 to the Scottish Public Services Ombudsman Act 2000 (asp 11), so that the Scottish Public Services Ombudsman is able to investigate complaints it receives about the actions of the Board. Paragraph 20(2) and (3) require the Board to put in place appropriate arrangements for investigating any complaints made to the Board about maladministration, and to publicise those arrangements.

154.Paragraph 21 makes the Board subject to the provisions of the Freedom of Information (Scotland) Act 2002 (asp 13); however, confidential information that is prohibited from disclosure under section 17 of the Act would be exempt from disclosure by virtue of section 26(a) of the 2002 Act.

155.Paragraph 22 achieves the transition from the existing non-statutory Board to the statutory Board set up under the Act by providing that the existing Board will become the first statutory Board on the coming into force of schedule 1.

Schedule 2 - Panels Established under Section 18(2)

156.This schedule sets out the procedures in relation to a panel established under section 19(2) to deal with a vacancy in either the office of the Lord President or the Lord Justice Clerk.

157.Paragraph 1(1) deals with the composition of the panel for a vacancy in the office of the Lord President, which is to include 2 qualifying judges nominated by the First Minister, as further explained in paragraph 3(1). Similar provision is made at paragraph 1(2) in connection with a panel for a vacancy in the office of the Lord Justice Clerk, except that one of the 2 judges nominated by the First Minister is replaced by the Lord President.

158.Paragraph 2(1) makes provision for when the Chairing Member of the Board is unable to take part in either panel. In these circumstances they must nominate another lay member of the Board to take their place. Under paragraph 2(2), if the office of Chairing Member is vacant, or that member is not able to make a nomination, then the Board must nominate another lay member of the Board as a substitute.

159.When the Lord President is unable to take part in a panel dealing with a vacancy in the office of Lord Justice Clerk, he or she may nominate another qualifying judge to sit in his or her place under paragraph 2(3). Paragraph 2(4) provides that where section 4(2) applies, that is, where the Lord President is incapacitated, suspended, or there is a vacancy in the office, the First Minister is to nominate another qualifying judge to take the Lord President’s place.

160.Paragraph 3(2) provides that the Lord Justice Clerk may not sit on a panel to fill a vacancy in that office. Thus a retiring Lord Justice Clerk has no role in the appointment of his or her successor. Paragraph 3(3) provides that in order to qualify to sit on a panel judges must first confirm to the First Minister that they do not wish to be appointed to the office in question. The effect of this is that any judges wishing to be considered for the vacant office will not be considered for appointment to the panel formed in connection with that vacancy.

Schedule 3 - the Scottish Court Service

Status of SCS

161.As mentioned in paragraph 115 above paragraph 1 of this schedule establishes the SCS as the holder of an office, which office shall also be known as the SCS, for the purposes of the order to be made under section 104 of the Scotland Act 1998 which will provide that the office known as the SCS is included within the Scottish Administration.

Membership

162.Paragraph 2(3)(d) provides that there shall be three lay members of the SCS.

163.Paragraph 2(5) enables the Scottish Ministers to modify the membership of the SCS by order but only with the consent of the Lord President and only in so far as it does not affect the judicial majority.

Procedure for appointment of members

164.Paragraph 3(1) provides that the Lord President is to appoint the members of the SCS other than the Lord Justice Clerk and the Chief Executive. This is because the Lord Justice Clerk is an ex officio member and the Chief Executive is appointed by the SCS as a whole in terms of paragraph 14(1) and not appointed by the Lord President alone. Sub-paragraphs (2) to (4) make provision for regulations to be made prescribing the procedure to be followed for nominations or selection. For example regulations made under this paragraph might provide that the Senators of the College of Justice would nominate the judicial member listed at paragraph 2(2)(c) and that the six sheriffs principal would nominate the judicial member listed at paragraph 2(2)(d).

Term of office

165.Paragraph 5(3)(b) covers the scenario of a person failing to be qualified as a member of the SCS in terms of which they were appointed under paragraph 2(2) and (3). If they failed to remain qualified they would cease to hold office as a member of the SCS. For example, if the solicitor member of the SCS (appointed under paragraph 2(3)(b)) lost his or her practising certificate they would automatically cease to hold office as a member of the SCS under this paragraph.

Suspension of judicial members

166.Paragraph 8 provides that if a judicial member of the SCS is suspended from his or her position as judge, sheriff principal, sheriff or JP, he or she will also suspended from acting as a member of SCS during that period.

Committees

167.Paragraph 10 enables the SCS to establish committees. For example it may establish an estates committee or an audit committee. A person who is not a member of the SCS, such as an external consultant, may be appointed to be a member of such a committee.

Chief Executive and other staff

168.Paragraph 14 provides that the SCS must appoint a Chief Executive and may appoint such other staff as it considers appropriate. Such staff will be civil servants as they will be within the Scottish Administration as provided for in the Section 104 order mentioned at paragraph 161 above.

Power to use local authority premises

169.Paragraph 16 provides for the SCS to require a local authority to let or sub-let premises to the SCS or make such premises available for use by the SCS. Where the SCS requires a local authority to do the former this is subject to agreement on the terms of the lease (including the rent payable) and to the agreement of any third party who has an interest in the premises. Where the SCS requires a local authority to do the latter the SCS must reimburse the authority for any reasonable expenses in respect of heating, lighting and cleaning and must allow the premises to continue to be used for any business normally conducted there. This re-enacts the provisions made in Part 2 of the 1971 Act in relation to sheriff courts and in section 60 of the 2007 Act in relation to JP courts and extends it to all courts for which the SCS is responsible. (Part 2 of the 1971 Act and section 60 of the 2007 Act are repealed by paragraphs 2(5) and 5(3)(b) respectively of Schedule 5 to the Act.) Subparagraph (4) provides that the SCS may in turn allow any premises let or used by them under this paragraph to be used by other persons on the condition that it does not adversely interfere with the business normally conducted there. An example might be where the SCS allows part of such premises to be used by the Crown Office and Procurator Fiscal Service.

Freedom of Information

170.Paragraph 18 provides that the SCS is covered by the requirements of the Freedom of Information (Scotland) Act 2002.

Transfer of staff

171.Paragraph 19 provides for the statutory office holders listed in section 59(2) of the Act (who are also currently employed by the Scottish Ministers and therefore meet the requirements in both subparagraphs (1)(a) and (b)) and members of staff in the existing SCS to transfer to the new SCS on the date that this paragraph comes into force. Staff on secondment or loan to the existing SCS do not transfer and neither does the existing Chief Executive. Subparagraphs (4) and (5) transfer the contracts of employment for those staff from the Scottish Ministers to the SCS. It also provides that the contract of employment of staff is not terminated by the transfer and has effect as though originally made between the person and SCS.

Transfer of property and liabilities

172.Paragraph 20 enables the Scottish Ministers to transfer the property held or used by them for or in connection with the purposes of the Scottish courts or the judiciary of those courts and any property used for the purposes listed in section 62(1) (administrative support for other persons) to the new SCS. It also enables the Scottish Ministers to transfer the corresponding liabilities to the new SCS. In terms of section 70 such an order would be made by negative resolution procedure. Subparagraphs (3) to (12) make supplementary provision for such an order (and are similar to the provision made in section 116 of the Scotland Act 1998). Subparagraph (3) provides that the order may provide for the creation of rights or interests, etc and provide for the property etc. to be determined (rather than specified in the legislation itself). Subparagraph (4) ensures that the order overrides "any provision (of whatever nature)" that may otherwise prevent, penalise or restrict the transfer. Subparagraphs (5) to (10) and (12) make further provision to ensure that rights of pre-emption, etc. do not operate as a result of the transfer; that compensation may be payable to any person who may be prevented from exercising such a right and for the determination of any disputes. Subparagraph (10) extends the scope of subparagraphs (4) to (9) to cover the creation of rights or interests, or the doing of anything else, in relation to property. Subparagraph (11) makes provision for a certificate issued by the Scottish Ministers to be conclusive evidence of a transfer.

Schedule 4 – Appointment Etc. of Office Holders: Consequential Amendments

173.This schedule makes the necessary modifications to enactments required by section 63.

174.Paragraph 1(1) to (4) amends the Administration of Justice (Scotland) Act 1933 (“the 1933 Act”) to transfer from the Scottish Ministers to the SCS the power to appoint clerks in the Court of Justiciary (section 23(1)); officers of the Court of Session (section 24 (1) and (7)); and the Principal Clerk of Justiciary (section 25).

175.Paragraph 1(5) amends section 27 the 1933 Act in respect of the remuneration of officers of the High Court of Justiciary and the Court of Session to insert a provision that the remuneration shall be of such amounts as the SCS may determine. It removes the exemption of the office of the Auditor of the Court of Session from this determination, meaning that the remuneration of that office will continue to be paid by the Scottish Ministers.

176.Paragraph 2 amends the Sheriff Courts and Legal Officers (Scotland) Act 1927 (“the 1927 Act”).

177.Paragraphs 2(2) to (3) amend the 1927 Act to transfer from the Scottish Ministers to the SCS the power to appoint, remove from office and transfer sheriff clerks (section 1); and to appoint sheriff clerk deputes (section 2).

178.Paragraph 2(4) amends section 3 of the 1927 Act to transfer from the Scottish Ministers to the SCS the power to determine that the office of sheriff clerk shall be a full time office and no person appointed to the office may engage directly or indirectly in practice as a law agent or other employment which will in the opinion of the SCS interfere with the discharge of the duties of the office.

179.Paragraph 2(5) amends section 4 of the 1927 Act to transfer from the Scottish Ministers to the SCS the power to give directions for the discharge during a period of vacancy or incapacity of the duties of a sheriff clerk or sheriff clerk depute to another officer.

180.Paragraph 2(6) amends section 5 of the 1927 Act to transfer from the Scottish Ministers to the SCS the power to appoint whole time clerks or assistants to a sheriff clerk.

181.Paragraph 2(7) amends section 8 of the 1927 Act to transfer from the Scottish Ministers to the SCS the power to issue instructions as regards sheriff clerks.

182.Paragraph 2(8) amends section 9 of the 1927 Act to transfer from the Scottish Ministers to the SCS the requirement to consent to a deputation to a fit person to act as a depute sheriff clerk.

Schedule 5 – Consequential Modifications

183.Paragraph 1 amends section 2(1)(a) of the Courts of Law Fees (Scotland) Act 1895 to reflect the new budgetary arrangements for the SCS which will not receive its funding from the Scottish Ministers but by virtue of a separate vote in the annual Budget Act.

184.Paragraph 2 makes amendments to and repeals parts of the 1971 Act. Subparagraph (2) repeals section 11A(2) and is consequential on section 10(1)(f). Subparagraph (3) repeals section 11C and is consequential on section 38. Subparagraph (4) amends section 11D(1) and is also consequential on subparagraph (3). Reference is made to paragraph 169 above for the explanation of subparagraph (5). Subparagraph (6) amends section 33(4) to remove the role of the Scottish Ministers in appointing a secretary to the Sheriff Court Rules Council.

185.Paragraph 4 repeals the Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006. The provisions of that Act are re-enacted with minor modification in Chapter 2 of Part 2 of the Act.

186.Paragraph 5(2) amends section 81 of the 2007 Act to reflect the fact that the Lord President has an order making power under section 69 of the 2007 Act (as amended by section 42 of the Act). Reference is made to 91 above. Paragraph 5(3)(a) is consequential on the repeal of section 1 of the 1971 Act by section 48 of the Act. Reference is made to paragraph 169 above for the explanation of paragraph 5(3)(b). Paragraph 5(3)(c) is a consequential amendment on section 61. It repeals subsection 63(6) of the 2007 Act as the new SCS will have the responsibility for the administration of JP courts.

Parliamentary History

187.The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Act for this Act, the dates on which the proceedings at that Stage took place, and the references to the official report of those proceedings. It also shows the dates on which the Committee Reports and other papers relating to the Act were published, and references to those reports and other papers.