Scottish Statutory Instruments
2010 No. 39 (C. 1)
Court Of Session
High Court Of Justiciary
Judicial Appointments And Discipline
Justice Of The Peace Court
Scottish Court Service
Sheriff Court
The Judiciary and Courts (Scotland) Act 2008 (Commencement No. 4, Transitional Provisions and Savings) Order 2010
Made
9th February 2010
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 71(2) and 76(1) of the Judiciary and Courts (Scotland) Act 2008(1).
Citation and interpretation
1.—(1) This Order may be cited as the Judiciary and Courts (Scotland) Act 2008 (Commencement No. 4, Transitional Provisions and Savings) Order 2010.
(2) In this Order—
(a)“the Act” means the Judiciary and Courts (Scotland) Act 2008;
(b)“the 1971 Act” means the Sheriff Courts (Scotland) Act 1971(2); and
(c)references to sections, chapters, parts, paragraphs and schedules are, unless otherwise stated, references to sections, chapters and parts of, and paragraphs of schedules and schedules to, the Act.
Appointed day
2. The days appointed for the coming into force of the provisions of the Act are—
(a)20th February 2010 for section 37(5) and section 40 insofar as it inserts section 12(C)(5) into the Sheriff Courts (Scotland) Act 1971(3); and
(b)1st April 2010 for the provisions of the Act specified in the Schedule to this Order.
Transitional provisions and savings
3. Despite the coming into force of sections 35-40 and paragraphs 2(1) and (3) and 3 of schedule 5, any proceedings for removal from judicial or shrieval office which have been commenced before 1st April 2010 shall continue to be governed by the law in force immediately before that date.
4. Judicial conduct occurring before 1st April 2010 may be taken into account in any proceedings under Chapters 4 and 5 of Part 2.
5. Despite the coming into force of sections 41 and 42, subordinate legislation made by Scottish Ministers under sections 69(1) and 71(7) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007(4) shall continue to have effect on or after 1st April 2010 as it had effect immediately before that date until such time as the Lord President of the Court of Session and the Court of Session respectively exercise their powers to make subordinate legislation under those sections and such subordinate legislation comes into force.
6. Despite the coming into force of section 48, any direction given by Scottish Ministers under section 9 of the 1971 Act before 1st April 2010 shall continue to have effect until its expiry or until the Lord President gives a direction under section 2(3) covering that subject matter.
7. Despite the coming into force of section 53 any authorisation or direction given by Scottish Ministers under section 10 of the 1971 Act before 1st April 2010 shall continue to have effect until its expiry or until revoked by the Lord President of the Court of Session.
8. Despite the coming into force of section 55, any requirement imposed or direction given by Scottish Ministers respectively under subsections (2) and (3) of section 14 of the 1971 Act shall continue to have effect until revoked by the Lord President of the Court of Session.
FERGUS EWING
Authorised to sign by the Scottish Ministers
St Andrew’s House,
Edinburgh
9th February 2010
Article 2(b)
SCHEDULEPROVISIONS OF THE ACT COMING INTO FORCE ON 1ST APRIL 2010
Column 1 Provisions of the Act | Column 2 Subject matter |
|---|---|
| Section 2 in so far as not already in force | Head of the Scottish Justiciary |
| Section 3 | Delegation of functions |
| Sections 28 and 29 | Judicial conduct |
| Sections 30 to 33 | Judicial complaints reviewer |
| Section 34 | Suspension |
| Sections 35 and 36 | Removal from office |
| Section 37 in so far as not already in force | |
| Sections 38 and 39 | |
| Section 40 in so far as not already in force | |
| Section 41 | |
| Section 42 | Training and appraisal of justices of the peace |
| Section 43 | Meaning of “judicial office holder” |
| Sections 47 to 56 | Sheriff courts |
| Sections 57 to 58 | Justice of the peace courts |
| Section 60(2) in so far as not already in force, except in relation to paragraph 1 of schedule 3 | The Scottish Court Service |
| Sections 61 to 64 | Functions of the Scottish Court Service |
| Section 65 | Provision of advice, etc to the Scottish Ministers |
| Section 67 | Annual report |
| Sections 68 to 70 | Ministerial powers |
| Section 73 in so far as not already in force | Consequential repeal |
| Schedule 3, paragraphs 15, 16, 17 and 19 | The Scottish Court Service |
| Schedule 4 | Appointment etc of office holders: Consequential amendments |
| Schedule 5 in so far as not already in force | Consequential amendments and repeals |
EXPLANATORY NOTE
(This note is not part of the Order)
This Order brings into force the order making powers in sections 37(5) and 40 of the Judiciary and Courts (Scotland) Act 2008 on 20th February and the remaining provisions on 1st April 2010, with the exception of paragraph 1 of schedule 3.
Articles 3 to 8 make various transitional provisions and savings as a result of the transfer of powers from Scottish Ministers to the Lord President and the Court of Session.
Article 5 provides that orders made by Scottish Ministers on the training and appraisal and removal of justices of the peace are to remain in force until the Lord President of the Court of Session and Court of Session exercise their powers to make subordinate legislation under the relevant provisions as amended by this Act.
Article 6 provides that administrative directions given by Scottish Ministers to sheriffs principal and sheriffs are to continue to have effect until their expiry or until replaced by a direction given by the Lord President.
Article 7 provides that where Scottish Ministers have authorised a sheriff principal or directed a sheriff to act in another sheriffdom, that authorisation or direction shall continue to have effect until its expiry or until revoked by the Lord President of the Court of Session.
Article 8 provides that where Scottish Ministers have required any sheriff to reside at a particular place or have directed a sheriff to perform his or her duties in a particular sheriff court district or districts, that requirement or direction shall continue to have effect until revoked by the Lord President of the Court of Session.
NOTE AS TO EARLIER COMMENCEMENT ORDERS
(This note is not part of the Order)
The following provisions of the Act have been brought into force by the Judiciary and Courts (Scotland) Act 2008 (Commencement No. 1) Order 2009 (S.S.I. 2009/83 (c. 6); the Judiciary and Courts (Scotland) Act 2008 (Commencement No. 2) Order 2009 (S.S.I. 2009/192 (c.15) and the Judiciary and Courts (Scotland) Act 2008 (Commencement No. 3) Order 2009 (S.S.I. 2009/318 (c.25):—
| Provision | Date of Commencement |
|---|---|
| Section 1 | 1st June 2009 |
| Subsections (1), (5) and (6) of section 2 for the purposes of subsections (2)(b) and (c) | 1st June 2009 |
| Subsections (2)(b) and (c) of section 2 | 1st June 2009 |
| Sections 4 to 8 | 1st June 2009 |
| Sections 9 to 18 | 1st June 2009 |
| Sections 19 and 20 | 1st June 2009 |
| Sections 21 to 23 | 1st June 2009 |
| Sections 24 to 26 | 1st June 2009 |
| Section 27 | 1st October 2009 |
| Sections 44 to 46 | 1st June 2009 |
| Section 59 | 16th March 2009 |
| Section 60(1) | 1st October 2009 |
| Section 60(2) in so far as it relates to the commencement of paragraphs 6, 9 to 14, 18 and 20 of schedule 3 | 1st October 2009 |
| Section 60(2) in so far as it relates to the commencement of subparagraphs 3(2), (3) and (4) of schedule 3 | 16th March 2009 |
| Section 60(2) in so far as it relates to the commencement of paragraphs 2, 3(1), 4, 5, 7 and 8 of schedule 3 | 1st June 2009 |
| Section 66 | 1st October 2009 |
| Section 73 in so far as it relates to the commencement of paragraph 4 of schedule 5 | 1st June 2009 |
| Schedule 1 | 1st June 2009 |
| Schedule 2 | 1st June 2009 |
| Schedule 3, paragraphs 6, 9 to 14, 18 and 20 | 1st October 2009 |
| Schedule 3, paragraphs 2, 3(1), 4, 5, 7 and 8 | 1st June 2009 |
| Schedule 3, subparagraphs 3(2), (3) and (4) | 16th March 2009 |
| Schedule 5, paragraph 4 | 1st June 2009 |
asp 6. The Justices of the Peace (Scotland) Order 2007 (S.S.I. 2007/210) was made under section 69 of that Act and the District Courts and Justices of the Peace (Scotland) Order 2007 (S.S.I. 2007/480) was made under section 71.