Judiciary and Courts (Scotland) Act 2008

Yn ddilys o 01/06/2009

SCHEDULE 1 S The Judicial Appointments Board for Scotland

(introduced by section 9(4))

Status of the Board S

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

Membership S

2 S The Board consists of—

(a) judicial members appointed by the Lord President,

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

(c) lay members appointed by the Scottish Ministers.

The judicial and legal members S

3 (1) The judicial members comprise— S

(a) one person 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, and

(c) one person holding the office of sheriff.

(2) The legal members comprise—

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

(b) one 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.

The lay members S

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

(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

(c) does not hold and has not held any judicial office within the Board's remit.

Persons disqualified from membership S

5 S 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,

(c) a member of the European Parliament,

(d) a Minister of the Crown,

(e) a member of the Scottish Executive, or

(f) a civil servant.

Term of office S

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

(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 S

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

(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 S

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. S

(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,

(c) has become insolvent, or

(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,

(c) the member's estate's being sequestrated, or

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

Chairing Member: appointment and tenure S

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

(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. S

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

(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 S

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— S

(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.

(3) An individual appointed by the Lord President under sub-paragraph (2) must fall within the same judicial membership category as that under which the absent member was appointed.

(4) An individual appointed by the Scottish Ministers under sub-paragraph (2)—

(a) where the absent member is a legal member, must fall within the same legal membership category as that under which the absent member was appointed,

(b) where the absent member is a lay member, must be qualified for appointment as a lay member.

(5) Before appointing a temporary member, the Lord President or, as the case may be, the Scottish Ministers must consult the Chairing Member.

(6) A temporary member takes the place of the absent member and, accordingly, the absent member is not to be counted as a member while the temporary member holds office.

(7) A temporary member's appointment ceases on—

(a) the period of absence coming to an end, or

(b) the expiry of the period of 6 months from the date of appointment,

(whichever occurs first).

(8) A person whose appointment as a temporary member ceases may nonetheless continue to act as a member so far as that is necessary for the purpose of concluding consideration of a judicial appointment which the Board is in the course of considering at the time the person's appointment ceases.

(9) Otherwise, the provisions of this schedule apply to a temporary member as they apply to any other member, and references in this schedule to a member of the Board are to be read accordingly.

Conflicts of interest S

12 (1) Sub-paragraph (2) applies where the Chairing Member is satisfied that a member of the Board (“the ineligible member”) is unable by reason of a conflict of interest to take part in the Board's consideration of a particular appointment (“the appointment concerned”). S

(2) The Chairing Member may—

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

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

(3) On receipt of a request under sub-paragraph (2), 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 in relation to the appointment concerned, appoint an individual to be a substitute member to take the place of the ineligible member for the purposes of that appointment.

(4) An individual appointed by the Lord President under sub-paragraph (3) must fall within the same judicial membership category as that under which the ineligible member was appointed.

(5) An individual appointed by the Scottish Ministers under sub-paragraph (3)—

(a) where the ineligible member is a legal member, must fall within the same legal membership category as that under which the substituted member was appointed,

(b) where the ineligible member is a lay member, must be qualified for appointment as a lay member.

(6) The appointment of a substitute member under sub-paragraph (3) in relation to the appointment concerned does not prevent the ineligible member from taking part in the Board's consideration of any other appointment.

(7) A substitute member is not to be counted as a member for the purposes of paragraph 4(1).

(8) A substitute member's appointment ceases on the conclusion of the Board's consideration of the appointment concerned.

(9) Otherwise, the provisions of this schedule apply to a substitute member as they apply to any other member, and references in this schedule to a member of the Board are to be read accordingly.

Fees and expenses S

13 (1) Each member of the Board is entitled to such fees and expenses, if any, as the Scottish Ministers may determine. S

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

(3) The Scottish Ministers may determine different fees and expenses for different members.

Administrative support S

14 (1) The Scottish Ministers must provide, or ensure the provision of, such staff, property and services as they consider the Board requires for the purpose of carrying out its functions. S

(2) Reference to “services” in sub-paragraph (1) includes, in particular, the appointment of a person—

(a) as an independent observer of the Board's procedures, or

(b) to provide the Board with advice.

(3) The Scottish Ministers must consult the Board as to the staff, property and services it requires for the purpose of carrying out its functions.

Procedure S

15 (1) The Board may determine its own procedure (including the number of members required to constitute a quorum). S

(2) However, the Chairing Member is not to have a casting vote.

Committees and delegation S

16 (1) The Board may establish committees and may delegate the carrying out of any of its functions to a committee. S

(2) Sub-paragraph (1) does not affect the Board's responsibility for the carrying out of its functions.

Validity of proceedings S

17 S The validity of any proceedings or actings of the Board is not affected by—

(a) any vacancy in the membership of the Board,

(b) any defect in the appointment of a member of the Board, or

(c) disqualification of any person from holding office as a member of the Board.

Board to fall within remit of Commissioner for Public Appointments in Scotland S

18 (1) In the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), in schedule 2 (which lists the authorities appointments to which are subject to the remit of the Commissioner for Public Appointments in Scotland), under the heading “Advisory bodies”, insert, at the appropriate place in alphabetical order— “ Judicial Appointments Board for Scotland ”. S

(2) If the code of practice published under section 2 of that Act contains provision of the kind described in sub-paragraph (3), that provision does not apply in relation to the making by the Scottish Ministers of an appointment to the Board.

(3) That is provision which has the effect of requiring that there be included among the members of any selection panel constituted for the purpose of considering candidates for the appointment a person falling within any of sub-paragraphs (a) to (f) of paragraph 5 of this schedule.

Code of conduct for members S

19 S In the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7), in schedule 3 (which lists the devolved public bodies required to produce a code of conduct for their members under that Act), insert, at the appropriate place in alphabetical order— “ The Judicial Appointments Board for Scotland ”.

Maladministration S

20 (1) In the Scottish Public Services Ombudsman Act 2002 (asp 11), in schedule 2 (which lists the authorities subject to investigation under that Act), in Part 2 (entries amendable by Order in Council), after paragraph 25 insert— S

“25A The Judicial Appointments Board for Scotland.”.

(2) The Board must make such arrangements as it considers appropriate for the investigation by it of any complaints of maladministration made to it by an individual concerning the manner in which the Board has carried out its functions in relation to the individual.

(3) The Board must take reasonable steps to ensure that any individuals in relation to whom it carries out functions are made aware of the arrangements made under sub-paragraph (2).

Freedom of information S

21 S In the Freedom of Information (Scotland) Act 2002 (asp 13), in schedule 1 (which lists the Scottish public authorities subject to that Act), in Part 7 (other authorities), before paragraph 69 insert—

“68A The Judicial Appointments Board for Scotland”.

Transitional provision: constitution of the first Board S

22 (1) The first members of the Board are to be those persons who are members of the existing Judicial Appointments Board on the coming into force of this schedule. S

(2) The first Chairing Member of the Board is to be the person who chairs the existing Judicial Appointments Board on the coming into force of this schedule.

(3) In sub-paragraphs (1) and (2), “the existing Judicial Appointments Board” means the administrative body established by the Scottish Ministers known as the Judicial Appointments Board for Scotland.

Yn ddilys o 01/06/2009

SCHEDULE 2 S Panels established under section 19(2)

(introduced by section 19(2))

Constitution of panel S

1 (1) A panel established under section 19(2) in connection with a vacancy, or an expected vacancy, in the office of Lord President is to comprise— S

(a) the Chairing Member of the Judicial Appointments Board for Scotland (“the Board”),

(b) one of the other lay members of the Board nominated by the Chairing Member, and

(c) two qualifying judges (on which see paragraph 3) nominated by the First Minister.

(2) A panel established under section 19(2) in connection with a vacancy, or an expected vacancy, in the office of Lord Justice Clerk is to comprise—

(a) the Chairing Member of the Board,

(b) one of the other lay members of the Board nominated by the Chairing Member,

(c) the Lord President, and

(d) one qualifying judge nominated by the First Minister.

(3) This paragraph is subject to paragraph 2.

Vacancies etc. S

2 (1) If the Chairing Member of the Board is unable for good reason to participate in a panel, that Member's place on the panel is to be taken by a lay member of the Board nominated by the Chairing Member. S

(2) If the office of the Chairing Member is vacant, or if that Member is unable for any reason to make a nomination for the purposes of sub-paragraph (1), that Member's place on the panel is to be taken by another lay member of the Board nominated by the Board.

(3) If the Lord President is unable for good reason to participate in a panel, the Lord President's place is to be taken by a qualifying judge nominated by the Lord President.

(4) During any period when section 4 applies, or if the Lord President is unable for any reason to make a nomination for the purposes of sub-paragraph (3), the Lord President's place on the panel is to be taken by a qualifying judge nominated by the First Minister.

Qualifying judges S

3 (1) The qualifying judges are— S

(a) those judges of the Supreme Court of the United Kingdom who have held office as judges of the Court of Session, and

(b) the judges of the Court of Session (other than the Lord President).

(2) The Lord Justice Clerk is not a qualifying judge in relation to a panel to be established in connection with an expected vacancy in that office.

(3) A judge is a qualifying judge in relation to a panel only if the judge has given to the First Minister notice that the judge is not willing to be appointed to the vacancy in connection with which the panel is to be established.

Fees and expenses S

4 (1) Each member of a panel is entitled to such fees and expenses, if any, as the Scottish Ministers may determine. S

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

(3) The Scottish Ministers may determine different fees and expenses for different members.

SCHEDULE 3 S The Scottish Court Service

(introduced by section 60(2))

Prospective

Status of [F1 SCTS] S

Textual Amendments

F1 Word in Act substituted (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. 1(2); S.S.I. 2015/12, art. 2; S.S.I. 2015/77, art. 2(2)(3), Sch.

F2 1 S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2 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.

Yn ddilys o 01/06/2009

Membership S

2 (1) The SCS consists of judicial members and non-judicial members. S

(2) The judicial members comprise—

(a) the Lord President,

(b) the Lord Justice Clerk,

(c) one other person holding the office of judge of the Court of Session,

(d) one person holding the office of sheriff principal,

(e) two persons holding the office of sheriff, and

(f) one person holding the office of justice of the peace.

(3) The non-judicial members comprise—

(a) an advocate practising as such in Scotland,

(b) a solicitor practising as such in Scotland,

(c) the Chief Executive (appointed under paragraph 14(1)), and

(d) three other individuals none of whom is qualified for appointment as a judicial member or for appointment under any of the preceding paragraphs.

(4) Each of the descriptions of members mentioned in sub-paragraphs (2) and (3) is referred to in this schedule as a “category of membership”.

(5) Subject to sub-paragraph (6), the Scottish Ministers may, with the consent of the Lord President, by order modify sub-paragraph (2) or (3).

(6) The Scottish Ministers must not make an order under sub-paragraph (5) if its effect would be that the total number of judicial members would no longer exceed the total number of non-judicial members.

Procedure for appointment of members S

3 (1) It is for the Lord President to appoint the members of the SCS (other than the Lord Justice Clerk and the Chief Executive). S

(2) The Lord President may appoint a person to be a member only if the person has been nominated, or otherwise selected for appointment, in accordance with such procedure as the Scottish Ministers may by regulations prescribe.

(3) Regulations under sub-paragraph (2) may—

(a) in particular, make provision for or in connection with enabling persons to nominate or select persons suitable for appointment,

(b) prescribe different procedures for different categories of membership.

(4) The Scottish Ministers must consult the Lord President before making regulations under sub-paragraph (2).

Commencement Information

I1 Sch. 3 para. 3 wholly in force at 1.6.2009; Sch. 3 para. 3 not in force at Royal Assent see s. 76; Sch. 3 para. 3(2)(3)(4) in force at 16.3.2009 by S.S.I. 2009/83, art. 2; Sch. 3 para. 3(1) in force at 1.6.2009 by S.S.I. 2009/192, art. 2, Sch.

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Persons disqualified from membership S

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

(a) a member of the House of Commons,

(b) a member of the Scottish Parliament,

(c) a member of the European Parliament,

(d) a councillor of any council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39),

(e) a Minister of the Crown, or

(f) a member of the Scottish Executive.

Yn ddilys o 01/06/2009

Term of office S

5 (1) This paragraph applies to a member of the SCS appointed by the Lord President. S

(2) The member holds office for such period not exceeding 4 years as the Lord President may, at the time of appointment, determine.

(3) The member ceases to hold office—

(a) on becoming disqualified from holding office as a member,

(b) on ceasing to fall within the category of membership under which the member was appointed.

Yn ddilys o 01/10/2009

Reappointment S

6 S A person who is, or has been, a member of the SCS appointed by the Lord President may be reappointed (whether under the same or a different category of membership) for further periods.

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Resignation and removal of members S

7 (1) This paragraph applies to a member of the SCS appointed by the Lord President. S

(2) The member may resign office by giving notice in writing to the Lord President.

(3) The Lord President may, by notice in writing, remove the member if satisfied that the member is unfit to be a member by reason of inability, neglect of duty or misbehaviour.

Yn ddilys o 01/06/2009

Suspension of judicial members S

8 S A judicial member is suspended from acting as such during any period in which the member is suspended from the judicial office which the member holds.

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Chairing of the SCS S

9 (1) The Lord President is to chair meetings of the SCS. S

(2) The Lord Justice Clerk may deputise for the Lord President in chairing meetings.

(3) Where the Lord President and the Lord Justice Clerk are for any reason unable to attend a meeting the remaining members may elect a member to chair the meeting.

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Committees S

10 (1) The SCS may establish committees. S

(2) A person who is not a member of the SCS may be appointed to be a member of any committee established by it.

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Proceedings S

11 S The SCS may determine—

(a) its own procedure (including the number of members required to constitute a quorum), and

(b) the procedure (including the number of members required to constitute a quorum) of any committees established by it.

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Validity of actings S

12 S The validity of any proceedings or actings of the SCS is not affected by—

(a) any vacancy in the membership of the SCS,

(b) any defect in the appointment of a member of the SCS, or

(c) disqualification of any person from holding office as a member of the SCS.

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Remuneration and expenses S

13 (1) The SCS may pay to— S

(a) its members, and

(b) the members of any committee established by it,

such sums as it may determine by way of reimbursement of expenses in respect of the carrying out of their functions as members.

(2) The SCS may pay to—

(a) the judicial member who is a justice of the peace,

(b) the non-judicial members, and

(c) the members of any committee established by it,

such other remuneration, if any, as it may determine.

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Chief Executive and other staff S

14 (1) The SCS must appoint a Chief Executive. S

(2) The SCS may appoint such other staff as it considers appropriate.

Yn ddilys o 01/04/2010

Ancillary powers S

15 (1) The SCS may do anything which it considers necessary or expedient for the purposes of or in connection with its functions. S

(2) In particular, the SCS may—

(a) acquire and dispose of land and other property,

(b) enter into contracts,

(c) provide information and advice.

Yn ddilys o 01/04/2010

Power to use local authority premises S

16 (1) The SCS may, where it considers it necessary for the purposes of carrying out its functions under section 61 or 62, require a local authority to— S

(a) let (or sub-let) premises controlled by the local authority to the SCS, or

(b) make such premises available for use for the purposes of the SCS.

(2) A requirement under sub-paragraph (1)(a) is subject to agreement—

(a) between the SCS and the local authority as to the rent payable under, and as to the other terms of, the lease (or sub-lease), and

(b) with any third party who has an interest in the premises.

(3) Where a requirement is made under sub-paragraph (1)(b)—

(a) the SCS is to reimburse the authority for any reasonable expenses incurred by the authority in respect of heating, lighting and cleaning in relation to the use of the premises for the purposes of the SCS, and

(b) the SCS is to allow the premises to continue to be used for any business normally conducted there, or for any business for which it may be used under a local enactment (whether a local Act or otherwise), without adversely affecting that business.

(4) The SCS may allow any premises let, sub-let or used under sub-paragraph (1) to be used by other persons subject to—

(a) such conditions as the SCS may impose, and

(b) sub-paragraph (3)(b).

(5) Any dispute arising from the operation of this paragraph which the parties are unable to resolve is to be determined by an arbiter appointed—

(a) by agreement of the parties, or

(b) in the absence of such agreement, by the Scottish Ministers on the application of a party.

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Delegation S

17 (1) Any function of the SCS may be carried out on its behalf by— S

(a) a member of the SCS,

(b) a committee,

(c) a member of its staff, or

(d) any other person,

authorised (whether specifically or generally) by it for the purpose.

(2) Nothing in sub-paragraph (1) prevents the SCS from exercising any function delegated under that sub-paragraph.

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Freedom of information S

18 S In the Freedom of Information (Scotland) Act 2002 (asp 13), in schedule 1 (which lists the Scottish public authorities subject to that Act), in Part 2 (non ministerial office holders in the Scottish Administration), after paragraph 18 insert—

“18A The Scottish Court Service.”.

Yn ddilys o 01/04/2010

Transfer of staff S

19 (1) Sub-paragraph (2) applies to persons who, on the coming into force of this paragraph— S

(a) hold any of the offices mentioned in section 63(2), or

(b) are members of the staff of the Scottish Ministers employed in the Executive Agency of the Scottish Ministers known as the Scottish Court Service Agency (referred to in this paragraph as “the Agency”), other than excepted staff.

(2) On the coming into force of this paragraph, those officers and staff transfer to, and become members of the staff of, the SCS (as well as, in the case of the holders of the offices referred in sub-paragraph (1)(a), continuing to hold those offices).

(3) The excepted staff are—

(a) the Chief Executive of the Agency, and

(b) staff on secondment or loan to the Agency from another part of the Scottish Administration.

(4) The contract of employment of a person who becomes a member of the staff of the SCS by virtue of sub-paragraph (2)—

(a) is not terminated by the transfer, and

(b) has effect from the date this paragraph comes into force as if originally made between the person and the SCS.

(5) Without prejudice to sub-paragraph (4)—

(a) all the rights, powers, duties and liabilities of the Scottish Ministers under or in connection with the person's contract of employment are by virtue of this sub-paragraph transferred to the SCS on the date on which this paragraph comes into force, and

(b) anything done before that date by or in relation to the Scottish Ministers in respect of that contract of employment or that person is to be treated from that date as having been done by or in relation to the SCS.

(6) This paragraph does not prejudice any right of any person to terminate that person's contract of employment if the terms and conditions of employment are changed substantially to the detriment of the person; but such a change is not to be taken to have occurred by reason only that the identity of the person's employer changes by virtue of this paragraph.

(7) The Scottish Ministers must appoint, on such terms and conditions as they may determine, a person to act as the Chief Executive of the SCS until the first Chief Executive is appointed by the SCS under paragraph 14(1).

(8) A determination by the Scottish Ministers that any member of their staff is—

(a) employed as mentioned in sub-paragraph (1)(b), or

(b) excepted staff by virtue of sub-paragraph (3),

is conclusive of that fact for the purposes of this paragraph.

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Transfer of property and liabilities S

20 (1) The Scottish Ministers may by order provide for the transfer to the SCS of any property or liabilities to which sub-paragraph (2) applies. S

(2) This sub-paragraph applies to—

(a) property of the Scottish Ministers which is held or used by them for or in connection with—

(i) the purposes of the Scottish courts or the judiciary of those courts,

(ii) the purposes referred to in section 62(1), and

(b) liabilities of the Scottish Ministers incurred in connection with those purposes.

(3) An order under sub-paragraph (1) may in particular—

(a) provide for the creation of rights or interests, or the imposition of liabilities or conditions, in relation to property transferred, or rights or interests acquired, by virtue of the order,

(b) provide for any property, liabilities or conditions to be determined under the order.

(4) An order under sub-paragraph (1) has effect in relation to any property or liabilities to which it applies despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict the transfer of the property or liabilities.

(5) A right of pre-emption, right of irritancy, right of return or other similar right does not operate or become exercisable as a result of any transfer of property by virtue of an order under sub-paragraph (1).

(6) Any such right has effect in the case of any such transfer as if the SCS were the same person in law as the Scottish Ministers and as if no transfer of the property had taken place.

(7) Such compensation as is just is to be paid to any person in respect of any such right which—

(a) would, apart from sub-paragraph (5), have operated in favour of, or become exercisable by, that person, but

(b) in consequence of the operation of that sub-paragraph, cannot subsequently operate in the person's favour or (as the case may be) become exercisable by the person.

(8) Any compensation payable by virtue of sub-paragraph (7) is to be paid by the Scottish Ministers or by the SCS or by both.

(9) An order under sub-paragraph (1) may provide for the determination of any disputes as to—

(a) whether and, if so, how much, compensation is payable by virtue of sub-paragraph (7), and

(b) the person to whom or by whom it is to be paid.

(10) Sub-paragraphs (4) to (9) apply in relation to the creation of rights or interests, or the doing of anything else, in relation to property as they apply in relation to a transfer of property.

(11) A certificate issued by the Scottish Ministers that any property or liability has, or has not, been transferred by virtue of an order under sub-paragraph (1) is conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.

(12) In this paragraph, “right of return” means any right under a provision for the return or reversion of property in specified circumstances.

Yn ddilys o 01/04/2010

SCHEDULE 4 S Appointment etc. of office holders: consequential amendments

(introduced by section 63(4))

The Administration of Justice (Scotland) Act 1933 (c. 41) S

1 (1) The Administration of Justice (Scotland) Act 1933 is amended as follows. S

(2) In section 23(1) (appointment of clerks in the Court of Justiciary), for “Scottish Ministers and shall be exercised after consultation with the Lord Justice General” substitute “ Scottish Court Service ”.

(3) In section 24 (appointment of officers of the Court of Session)—

(a) in subsection (1)—

(i) for “Scottish Ministers shall, after consultation with the Lord President,”, substitute “ Scottish Court Service shall ”, and

(ii) for “they” substitute “ it ”, and

(b) in subsection (7)—

(i) for “Scottish Ministers”, in both places those words appear, substitute “ Scottish Court Service ”, and

(ii) for “them”, substitute “ it ”.

(4) For section 25 substitute—

“25 Appointment of Principal Clerk of Justiciary etc.

(1) The right of appointing to the offices of Principal Clerk of Justiciary and Accountant of Court shall be vested in the Scottish Court Service.

(2) The right of appointing to the office of Auditor of the Court of Session shall be vested in the Scottish Ministers.”.

(5) In section 27 (remuneration of officers of High Court of Justiciary and Court of Session)—

(a) after subsection (1) insert—

“(1A) The remuneration of the persons appointed to any office in pursuance of the powers vested in the Scottish Court Service by this Part of this Act, shall be of such amounts as the Scottish Court Service may determine.”, and

(b) in subsection (2)—

(i) the words “(other than the office of Auditor of the Court of Session)” are repealed, and

(ii) for “Scottish Ministers” substitute “ Scottish Court Service ”.

The Sheriff Courts and Legal Officers (Scotland) Act 1927 (c. 35) S

2 (1) The Sheriff Courts and Legal Officers (Scotland) Act 1927 is amended as follows. S

(2) In section 1 (appointment of sheriff clerk and procurator fiscal)—

(a) in subsection (1)—

(i) for “one of His Majesty's Principal Secretaries of State” substitute “ the Scottish Court Service ”,

(ii) for “Secretary of State” substitute “ Scottish Court Service ”, and

(iii) for “him” substitute “ it ”, and

(b) in subsection (4), for “Secretary of State”, in both places those words appear, substitute “ Scottish Court Service ”.

(3) In section 2 (appointment of sheriff clerk and procurator fiscal deputes), for “Secretary of State” substitute “ Scottish Court Service ”.

(4) In section 3 (whole-time sheriff clerks and procurators fiscal and deputes), for “Secretary of State”, in both places those words appear, substitute “ Scottish Court Service ”.

(5) In section 4 (vacancy in office of sheriff clerk, procurator fiscal or deputes), for “Secretary of State” substitute “ Scottish Court Service ”.

(6) In section 5 (whole-time clerks)—

(a) in subsection (1), for “Secretary of State” substitute “ Scottish Court Service ”, and

(b) in subsection (2)—

(i) for “Scottish Ministers” substitute “ Scottish Court Service ”, and

(ii) for “they consider” substitute “ it considers ”.

(7) In section 8 (power to issue instructions, etc.)—

(a) in subsection (1), for “Secretary of State” substitute “ Scottish Court Service ”, and

(b) in subsection (2)—

(i) for “Secretary of State” substitute “ Scottish Ministers ”, and

(ii) for “him” substitute “ the Scottish Court Service ”.

(8) In section 9 (deputation by sheriff clerk or procurator fiscal), for “Secretary of State” substitute “ Scottish Court Service ”.

Yn ddilys o 01/06/2009

SCHEDULE 5 S Consequential amendments and repeals

(introduced by section 73)

Yn ddilys o 01/04/2010

The Courts of Law Fees (Scotland) Act 1895 (c. 14) S

1 S In the Courts of Law Fees (Scotland) Act 1895, in section 2(1)(a), the words from “the expenses” to “Scottish Ministers” are repealed.

Yn ddilys o 01/04/2010

The Sheriff Courts (Scotland) Act 1971 (c. 58) S

2 (1) The 1971 Act is amended as follows. S

(2) Section 11A(2) is repealed.

(3) Section 11C is repealed.

(4) In section 11D (regulations and orders under sections 11A and 11C)—

(a) in subsection (1), for the words “Regulations under section 11A or section 11C and orders” substitute “ Orders ”, and

(b) in subsection (2), the words “regulations or” are repealed.

(5) Part 2 (court houses, buildings and offices) is repealed.

(6) In section 33 (Sheriff Court Rules Council), in subsection (4), the words from “and” to the end are repealed.

Yn ddilys o 01/04/2010

The Scotland Act 1998 (Transitory and Transitional Provisions) (Removal of Judges) Order 1999 (S.I. 1999/1017) S

3 S The Scotland Act 1998 (Transitory and Transitional Provisions) (Removal of Judges) Order 1999 is revoked.

The Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 (asp 9) S

4 S The Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 is repealed.

Yn ddilys o 01/04/2010

The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) S

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

(2) In section 81 (orders)—

(a) in subsection (1), after “Ministers” insert “ or the Lord President of the Court of Session ”, and

(b) in subsection (2)(a), after “consider” insert “ or (as the case may be) the Lord President considers ”.

(3) The following provisions are repealed—

(a) in section 59(8) (establishing JP courts), paragraph (a) and the word “and” which immediately follows it,

(b) section 60 (provision for justice of the peace courts), and

(c) section 63(6) (staffing of justice of the peace courts)