Judiciary and Courts (Scotland) Act 2008

JurisdictionScotland
Citation2008 asp 6


Judiciary and Courts (Scotland) Act 2008

2008 asp 6

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 25th September 2008 and received Royal Assent on 29 October 2008

An Act of the Scottish Parliament to make provision about the judiciary and the courts; to establish the Scottish Court Service; and for connected purposes.

1 Judicial independence

Part 1

Judicial independence

S-1 Guarantee of continued judicial independence

1 Guarantee of continued judicial independence

(1) The following persons must uphold the continued independence of the judiciary—

(a) the First Minister,

(b) the Lord Advocate,

(c) the Scottish Ministers,

(d) members of the Scottish Parliament, and

(e) all other persons with responsibility for matters relating to—

(i) the judiciary, or

(ii) the administration of justice,

where that responsibility is to be discharged only in or as regards Scotland.

(2) In particular, the First Minister, the Lord Advocate and the Scottish Ministers—

(a) must not seek to influence particular judicial decisions through any special access to the judiciary, and

(b) must have regard to the need for the judiciary to have the support necessary to enable them to carry out their functions.

(3) In this section "the judiciary" means the judiciary of—

(a) the Supreme Court of the United Kingdom,

(b) any other court established under the law of Scotland, and

(c) any international court.

(4) In subsection (3)(c) "international court" means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—

(a) an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or

(b) a resolution of the Security Council or General Assembly of the United Nations.

2 The judiciary

Part 2

The judiciary

Head of the Scottish Judiciary

Head of the Scottish Judiciary

S-2 Head of the Scottish Judiciary

2 Head of the Scottish Judiciary

(1) The Lord President is the Head of the Scottish Judiciary.

(2) As Head of the Scottish Judiciary the Lord President is responsible—

(a) for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts,

(b) for representing the views of the Scottish judiciary to the Scottish Parliament and the Scottish Ministers,

(c) for laying before the Scottish Parliament written representations on matters that appear to the Head of the Scottish Judiciary to be matters of importance relating to—

(i) the Scottish judiciary, or

(ii) the administration of justice,

(d) for making and maintaining appropriate arrangements for the welfare, training and guidance of judicial office holders, and

(e) for making and maintaining, in accordance with section 28, appropriate arrangements for—

(i) the investigation and determination of any matter concerning the conduct of judicial office holders, and

(ii) the review of such determinations.

(3) If, in carrying out the responsibility mentioned in subsection (2)(a), the Lord President gives a direction of an administrative character to a sheriff principal, the sheriff principal must comply with the direction.

(4) In carrying out the responsibility for making and maintaining arrangements for training mentioned in subsection (2)(d) the Lord President must require any judicial office holder, or class of judicial office holder, to attend such training as the Lord President determines.

(5) References in this section to the Scottish judiciary are references to the judiciary of any court established under the law of Scotland (other than the Supreme Court of the United Kingdom).

(6) In this section, "the Scottish courts" means—

(a) the Court of Session,

(b) the High Court of Justiciary,

(c) the court for hearing appeals under section 57(1)(b) of the Representation of the People Act 1983 (c. 2) ,

(d) the election court in Scotland constituted under section 123 of that Act,

(e) the Lands Valuation Appeal Court,

(f) the sheriff courts,

(g) justice of the peace courts, and

(h) such other courts as the Scottish Ministers may by order specify.

(7) Before making an order under subsection (6)(h), the Scottish Ministers must consult the Lord President.

S-3 Delegation of functions

3 Delegation of functions

(1) The Lord President may delegate to a judicial office holder any function mentioned in subsection (2) of section 2 other than the functions mentioned in subsection (2) below.

(2) Those functions are—

(a) so far as exercisable in relation to sheriff courts or justice of the peace courts, the function conferred by paragraph (a) of subsection (2) of that section,

(b) the function conferred by paragraph (e) of subsection (2) of that section.

Senior judiciary: vacancy, incapacity and suspension

Senior judiciary: vacancy, incapacity and suspension

S-4 Lord President

4 Lord President

(1) This section applies during any period when—

(a) the office of Lord President is vacant,

(b) the Lord President is incapacitated, or

(c) the Lord President is suspended.

(2) During such a period—

(a) any function of the Lord President is exercisable instead by the Lord Justice Clerk,

(b) anything that falls to be done in relation to the Lord President falls to be done instead in relation to the Lord Justice Clerk,

(c) any function of the Lord Justice Clerk is exercisable instead by the senior judge of the Inner House, and

(d) anything that falls to be done in relation to the Lord Justice Clerk falls to be done instead in relation to the senior judge of the Inner House.

(3) For the purposes of this section—

(a) the Lord President is to be regarded as incapacitated only if the First Minister has received a declaration in writing signed by a majority of the total number of judges of the Inner House declaring that they are satisfied that the Lord President is incapacitated,

(b) in such a case, the Lord President is to be regarded as incapacitated until the First Minister has received a declaration in writing signed by a majority of the total number of judges of the Inner House declaring that they are satisfied that the Lord President is no longer incapacitated.

(4) The judges of the Inner House making a declaration for the purposes of subsection (3)(a) or (b) must include the Lord Justice Clerk.

(5) The requirement in subsection (4)—

(a) does not apply during any period when section 5 applies, and

(b) is subject to section 7(4).

(6) The First Minister must send a copy of a declaration received under subsection (3)(a) or (b) to the Presiding Officer of the Scottish Parliament.

(7) The reference in subsection (2)(a) to functions of the Lord President does not include the function of participating in a panel established under section 19(2) in connection with a vacancy, or an expected vacancy, in the office of Lord Justice Clerk.

S-5 Lord Justice Clerk

5 Lord Justice Clerk

(1) This section applies during any period when—

(a) the office of Lord Justice Clerk is vacant,

(b) the Lord Justice Clerk is incapacitated, or

(c) the Lord Justice Clerk is suspended.

(2) During such a period—

(a) any function of the Lord Justice Clerk is exercisable instead by the senior judge of the Inner House, and

(b) anything that falls to be done in relation to the Lord Justice Clerk falls to be done instead in relation to the senior judge of the Inner House.

(3) For the purposes of this section—

(a) the Lord Justice Clerk is to be regarded as incapacitated only if the First Minister has received a declaration in writing signed by a majority of the total number of judges of the Inner House declaring that they are satisfied that the Lord Justice Clerk is incapacitated,

(b) in such a case, the Lord Justice Clerk is to be regarded as incapacitated until the First Minister has received a declaration in writing signed by a majority of the total number of judges in the Inner House declaring that they are satisfied that the Lord Justice Clerk is no longer incapacitated.

(4) The judges of the Inner House making a declaration for the purposes of subsection (3)(a) or (b) must include the Lord President.

(5) The requirement in subsection (4)—

(a) does not apply during any period when section 4 applies, and

(b) is subject to section 7(4).

(6) The First Minister must send a copy of a declaration received under subsection (3)(a) or (b) to the Presiding Officer of the Scottish Parliament.

S-6 Periods when both sections 4 and 5 apply

6 Periods when both sections 4 and 5 apply

(1) Subsection (2) applies during any period when both sections 4 and 5 apply.

(2) During such a period, subsection (2) of each of those sections does not apply and instead—

(a) any function of the Lord President...

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