2008 Chapter 6

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These Notes relate to the Judiciary and Courts (Scotland) Act 2008 (asp 6) which received Royal Assent on 29 October 2008

JUDICIARY AND COURTS (SCOTLAND) ACT 2008

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

THE ACT

3.     The Act makes substantive provision in relation to 4 main policy areas (judicial independence, the judiciary including the provision of a statutory basis for the Judicial Appointments Board, the courts and new arrangements for the governance of the Scottish Court Service ("the SCS"). However the overarching objective for the Act is to modernise and improve the court system through strengthening the role of Scotland's judiciary.

4.     Part 1 provides a statutory guarantee of the continued independence of the judiciary in Scotland.

5.     Part 2 provides for the Lord President of the Court of Session to be the head of the Scottish judiciary; sets out procedures in relation to the vacancy, incapacity and suspension of the senior judiciary; provides a statutory basis for the Judicial Appointments Board and the criteria for the appointment of the Lord President and the Lord Chief Justice; sets out the eligibility criteria for appointment as a judge of the Court of Session and arrangements for retired and temporary judicial office holders; and makes provision for a scheme for judicial conduct and the removal of judges and sheriffs.

6.     Part 3 provides for matters relating to the judiciary and the Court of Session; responsibilities and powers in relation to sheriff courts; and responsibilities in relation to justice of the peace courts.

7.     Part 4 sets out the new governance arrangements for the SCS establishing it as a body corporate and detailing its functions, membership, powers and responsibilities.

8.     Part 5 contains a range of general provisions including an interpretation section and provision about subordinate legislation making powers.

PART 1 - JUDICIAL INDEPENDENCE

Section 1 - Guarantee of continued judicial independence

9.     Section 1 places a duty on the First Minister, the Lord Advocate, the Scottish Ministers, members of the Scottish Parliament and any other persons who have responsibility for matters relating to the judiciary or the administration of justice in Scotland to uphold the continued independence of the judiciary. In doing so it also sets out two specific duties for the purpose of upholding that independence.

10.     The first is a duty on the First Minister, the Lord Advocate and the Scottish Ministers not to seek to influence judicial decisions through any special access to the judiciary. "Special access" is intended to refer to any access which they may have which a member of the general public may not. However this duty would not limit what may be said on their behalf in court in the course of presenting any case in which they are a party.

11.     The second is a duty on the First Minister, the Lord Advocate and the Scottish Ministers to have regard to the need for the judiciary to have the support necessary to enable them to carry out their functions.

PART 2 - THE JUDICIARY

Chapter 1 - Head of the Scottish Judiciary

Section 2 - Head of the Scottish Judiciary

12.     This section unifies the judiciary under the Lord President by establishing the Lord President as the head of the Scottish judiciary and placing a number of responsibilities on the Lord President. These responsibilities are: the efficient disposal of business in the Scottish courts; representation of the views of the Scottish judiciary to the Scottish Parliament and to the Scottish Ministers; the laying of written representations before Parliament on matters of importance relating to the Scottish judiciary or to the administration of justice in Scotland; the welfare, training, guidance of judicial office holders; and establishment and operation of a conduct scheme for the judiciary.

13.     In order to facilitate the efficient disposal of business in the courts, subsection (3) gives the Lord President a power to give directions to sheriffs principal and places a duty on sheriffs principal to comply with such directions. These directions relate to administrative matters, so that the business of the courts may run efficiently. This power would not, for example, enable the Lord President to give a direction concerning a judicial decision. This power is mirrored in sections 44 and 55 which amend the Sheriff Courts (Scotland) Act 1971 (c.58) ("the 1971 Act") and the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) ("the 2007 Act") respectively to give the same power to sheriffs principal in relation to sheriffs, justices of the peace, stipendiary magistrates and staff of the SCS. This power of the sheriffs principal is subject to the Lord President's overarching power of direction.

14.     In making and maintaining appropriate arrangements for training as required by subsection (2)(d), subsection (4) places a duty on the Lord President to require judges to attend training.

Section 3 - Delegation of functions

15.     This section enables the Lord President to delegate his or her functions as set out in section 2(2) to other judges (referred to as "judicial office holders" in the Act and defined in section 39). Subsection (2) places restrictions on this delegation, namely that the following functions cannot be delegated: the Lord President's function of making and maintaining arrangements to secure the efficient disposal of business in sheriff courts and justice of the peace courts ("JP courts"); and the Lord President's function of making rules for the judicial conduct scheme under section 28(1).

Chapter 2 - Senior Judiciary: Vacancy, Incapacity and Suspension

Section 4 - Lord President

16.     This section makes various provisions for when the office of the Lord President of the Court of Session - the most senior judge in Scotland - is vacant, or when the Lord President is either incapacitated or suspended. This section together with sections 5, 6, 7 and 8 re-enact, with minor modifications, the Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 (asp 9) which is repealed by paragraph 6 of Schedule 5.

17.     In any of these circumstances, subsection (2) provides that the functions of Lord President will be carried out instead by the Lord Justice Clerk, and that the functions of the office of Lord Justice Clerk will, in turn, be carried out by the senior Inner House judge. Subsection (2) also makes clear that all of the functions of the Lord President and the Lord Justice Clerk are covered. For example, the Lord President has statutory functions in relation to a wide range of tribunals, he has responsibility for making appointments to, for example, the Lands Tribunal for Scotland and he also has various rule-making powers. There are a number of provisions that require others to consult with the Lord President, or seek his approval, in the course of their activities. For example Ministers must consult with the Lord President before they appoint persons as temporary judges. All of these functions are covered in addition to his judicial functions.

18.     Subsections (3)(a) and (4) provide for a decision that the Lord President is incapacitated. It is for the judges of the Inner House to decide this, and a majority of their number must sign a written declaration to this effect, which must be supplied to the First Minister. A majority of judges is calculated in accordance with section 7(3). The Lord Justice Clerk must be one of those judges except where subsection (5) applies, that is, where the Lord Justice Clerk is incapacitated, suspended or there is a vacancy in the office in terms of section 5, or where the judges making the declaration are satisfied that the Lord Justice Clerk is incapacitated in terms of section 7(4). Once the written declaration is received by the First Minister, the provisions of the Act for incapacity take effect.

19.     No procedure is required in the case of a vacancy or suspension. As soon as the office of Lord President becomes vacant for any reason (for instance on the death, resignation, removal or retiral of the office holder) or when the Lord President is suspended, subsection (2) will take effect.

20.     The powers under the Act will cease to have effect on one of three events occurring. The first would be the assumption of office of a new Lord President where there has been a vacancy. The second is when the First Minister receives a written declaration signed by a majority of Inner House judges that they are satisfied the Lord President is no longer incapacitated. This is provided for in subsection (3)(b). There is no requirement that the same judges sign both declarations. The third is if the Lord President's period of suspension ceases and he or she resumes office.

21.     Subsection (6) requires the First Minister to send a copy of either declaration concerning incapacity received from the judges to the Presiding Officer of the Scottish Parliament.

22.     Subsection (7) prevents the Lord Justice Clerk, whilst he or she is undertaking the functions of the Lord President during a period of vacancy, incapacity or suspension, from deputising for the Lord President on a panel constituted under section 19(2) to recommend appointment to the office of Lord Justice Clerk.

Section 5 - Lord Justice Clerk

23.     This section makes similar provision for the incapacity or suspension of the Lord Justice Clerk and provides in such eventuality for his or her functions to be carried out by the senior judge of the Inner House.

Section 6 - Periods when both sections 4 and 5 apply

24.     Section 6 makes provision for what would happen were both the Lord President and the Lord Justice Clerk to be incapacitated or suspended at the same time or in the event of both posts being vacant. It provides that in such a situation their functions would be carried out by the two most senior judges of the Inner House. In particular the most senior would carry out the Lord President's functions and the other (i.e. "the second senior judge") would carry out the Lord Justice Clerk's functions .

25.     By way of illustration - the Inner House comprises the Lord President, the Lord Justice Clerk, and, in order of seniority, Judges 1, 2, 3, 4, 5, 6, 7, 8 and 9. The Lord President is incapacitated. The Lord Justice Clerk is carrying out the functions of that office, with Judge 1 carrying of the functions of the Lord Justice Clerk. The Lord Justice Clerk becomes incapacitated before the Lord President returns to duty. Following the scheme of this section, Judge 1 then "steps up" and exercises the functions of the Lord President; Judge 2 assumes powers to carry on the functions of the Lord Justice Clerk.

Section 7 - Supplementary

26.     Subsections (1) and (2) deal with the possibility that at the point when it becomes necessary to invoke the provisions of sections 4, 5 or 6, the judge of the Inner House who would have taken on the functions, is unavailable. The provisions provide that, in such circumstances, the next most senior judge who is available should take the place of his or her more senior colleague. So using the illustration in paragraph 25, if Judge 2 had been unavailable when the Lord Justice Clerk became incapacitated, Judge 3 would have stepped up to carry out the functions of the Lord Justice Clerk. This will only last during the currency of any such unavailability. This provision may assist in situations where the next most senior judge has judicial or other commitments which would prevent him or her from taking on the additional functions.

27.     Subsection (3) sets out which judges will count towards the total number of judges for the purposes of calculating the majority of judges required to sign the declaration in sections 4(3) and 5(3).

28.     Subsection (4) makes provision for circumstances when both the Lord President and the Lord Justice Clerk are incapacitated, to address a potential difficulty with the arrangements for declaring incapacity: if the Lord Justice Clerk were to become incapacitated at the same time as or shortly after the Lord President, the declaration of the Lord President's incapacity under section 4(3)(a) could not proceed because the Lord Justice Clerk would be unable to participate as required by section 4(4) and would not yet have been declared incapacitated under section 5(3)(a) such that section 4(5)(b) would apply. In these circumstances, subsection (3) enables the declaration to proceed without the participation of the Lord Justice Clerk. The provision works in a similar way as regards declarations of incapacity under section 5.

29.     Subsection (5) makes it clear that during periods when a judge is carrying out the functions of the Lord President or the Lord Justice Clerk under sections 4 and 5, that judge will continue to receive his or her usual remuneration and will not receive any remuneration due to the Lord President or the Lord Justice Clerk.

Section 8 - Interpretation of Chapter 2

30.     This section gives certain words specific meanings for the purposes of Chapter 2. Subsection (1) makes clear that incapacity arises only on the grounds of ill health. Subsection (2) makes clear that it is seniority of appointment to the Inner House that is relevant to which judge is most senior in terms of the Act procedure. Subsection (3) recognises that the Lord President is also the holder of the office of Lord Justice General. The effect is that the functions relating to that office can also be carried on under the provisions of the Act.

31.      Subsection (4) preserves the provisions that already exist in statute allowing the Lord Justice Clerk to carry out a function of the Lord President or Lord Justice General. One example is section 2(1) of the Criminal Procedure (Scotland) Act 1995 (c.46). This provides that the High Court will sit at such places as the Lord Justice General whom failing the Lord Justice Clerk shall determine. By applying section 4(2) to such existing statutory provisions, subsection (2) makes clear that in the event of a vacancy or the incapacity of the Lord Justice General, such a function of the Lord Justice General may be exercised by the Lord Justice Clerk "whom failing" the senior judge of the Inner House acting as Lord Justice Clerk under the Act provisions.

Chapter 3 - Judicial Appointments

Section 9 - The Judicial Appointments Board for Scotland

32.     Subsection (1) establishes the Judicial Appointments Board for Scotland ("the Board") as a statutory body. The Board is an advisory non-departmental public body which is not a body corporate.

33.     Subsection (2) provides that the functions of the Board are to recommend individuals for appointment to the judicial offices within the Board's remit, listed at section 10(1), and to provide advice on those appointments. The Board makes recommendations and provides advice to "members of the Scottish Executive". This expression is used because some judicial appointment functions are exercised by the First Minister individually (e.g. appointment of judges of the Court of Session, sheriffs principal and sheriffs) and some by the Scottish Ministers collectively (e.g. appointment of temporary judges and part-time sheriffs). It would therefore be misleading to simply refer here to "the Scottish Ministers" as that would fail to catch appointments functions exercised by the First Minister alone. "Members of the Scottish Executive" also addresses the fact that functions placed on the Scottish Ministers collectively may in practice be exercised by a particular Minister (section 52(3) of the Scotland Act 1998 (c.46) ("the Scotland Act 1998") provides that "Statutory functions of the Scottish Ministers shall be exercisable by any member of the Scottish Executive").

34.     Subsection (3) makes it clear that the work of the Board is not subject to either the direction or the control of any member of the Scottish Executive or any other person. This ensures that the Board may not be directed or controlled by anyone outside the Board, including the First Minister when he or she exercises appointment powers alone, the Scottish Ministers when they act collectively, junior Scottish Ministers (who are not members of the Scottish Executive by virtue of section 44 of the Scotland Act 1998) and the Lord President.

35.     Subsection (4) refers to Schedule 1 which sets out matters relating to the Board such as membership, fees and expenses, administrative support and procedures. Schedule 1 is further explained below.

Section 10 - Judicial offices within the Board's remit

36.     The judicial offices within the Board's remit are listed at subsection (1). Two of the offices listed ("office of temporary judge" and "office of part-time sheriff") are defined by reference to statutory provision in section 72. The Board's remit does not extend to the offices of Lord President and the Lord Justice Clerk for which separate provision is made at sections 19 and 20. Subsection 1(c) provides that the office of temporary judge falls within the Board's remit except where a candidate already holds or has held a judicial office as set out in subsection (1A). This means that a person who has already been or is a judge in the Court of Justice of the European Communities in Luxembourg, a judge in the European Court of Human Rights in Strasbourg, a sheriff, a sheriff principal or the Chairman of the Scottish Land Court may be appointed as a temporary judge without having to be interviewed or selected by the Board.

37.     Subsection (1)(g) enables the Scottish Ministers by order to add other judicial offices to the Board's remit only in so far as either the First Minister or the Scottish Ministers are able to make appointments to that office or nominate or recommend individuals for appointments to that office. Under subsection (3) the judicial offices that may be added to the Board's remit by way of this order-making power include tribunal membership, part-time offices and temporary offices.

Section 11 - Recommendations of the Board

38.     Subsection (1) ensures that only individuals who have been recommended by the Board for appointment to judicial office may be nominated or recommended by the First Minister or Scottish Ministers as applicable.

39.     Subsections (2) to (5) set out a formal process to be followed if the relevant Minister decides not to accept a recommendation of the Board. The Minister must explain his or her decision in a notice to the Board and the Board must reconsider the matter and make a further recommendation. These provisions are intended to enable the Minister to seek clarification or further information in respect of the Board's recommendations.

40.     Subsection (6) recognises that both the First Minister and the Scottish Ministers have, in different circumstances, the function of making appointments or nominating or recommending individuals for appointment to judicial office.

Section 12 - Selection criteria

41.     Subsection (2) makes it clear that selection must be solely on merit. This is intended to prevent selection on other grounds (e.g. seniority). Merit has not been defined but would encompass the applicants' abilities and competencies in respect of the criteria for the particular judicial office. It is wider than professional knowledge and would extend to attributes such as strong interpersonal skills.

42.     In addition, subsection (3) requires that an individual may only be selected if he or she is of good character. This is a test that all candidates must meet after which merit is the sole criterion.

Section 13 - Assessment of legal knowledge, skills and competence

43.     Subsection (1) provides that only the legal and judicial members of the Board may assess the legal competence of a candidate. Nevertheless, under subsection (2) the decision about whether to recommend an individual for appointment remains a matter for the Board as a whole.

Section 14 - Encouragement of diversity

44.     Subsection (1) places a specific duty on the Board to encourage diversity. This is to ensure that the pool of candidates for recommendation to judicial office is as wide as possible and is representative of the communities in which they will serve. Under the duty, the Board could, for example, promote schemes to encourage a diverse range of applicants for each post. Subsection (2) makes clear that, notwithstanding subsection (1), merit remains the sole criteria for selection and the person selected must be of good character.

Section 15 - Guidance

45.     Subsections (1) and (2) confer powers on both the Scottish Ministers and the Lord President to issue guidance to the Board. The power is conferred on both because both have an interest in the work of the Board.

46.     Subsection (3) provides a non-exhaustive list of examples of the sorts of issues which may be included in the guidance.

47.     Under subsection (4) the Board is required to have regard to any guidance issued under this section. This means that the Board is required to consider the guidance, but the Board is not obliged to follow the guidance provided that the decision not to follow it is not unreasonable.

48.     To ensure transparency, subsections (8) and (9) require that guidance issued under this section must be published and laid before the Scottish Parliament.

Section 16 - Guidance: procedure

49.     This section provides for Parliamentary scrutiny of guidance issued under section 15 by providing that such guidance must be laid in draft before the Scottish Parliament for a period of at least 21 days and that the Scottish Ministers or the Lord President (depending on whose guidance it is) must have regard to any recommendations made by the Parliament.

Section 17 - Confidentiality of information

50.     This section recognises that the Board will be dealing with sensitive and personal information. Subsection (1) prohibits unauthorised disclosures by the Board, its staff or indeed anyone who has been privy to confidential information relating to the appointment to judicial office process. For example, a candidate's referee, who has provided information to the Board, is prohibited from disclosing that information unless the disclosure is authorised, that is, unless subsection (3) applies.

51.     Subsection (2) clarifies that in this context, confidential information is information that relates to an identified or identifiable individual. Subsection (4) makes it clear that information given by one person about another person (for example, a reference) is confidential information about both persons.

52.     Subsection (3) sets out the limited circumstances in which disclosure of information is authorised, which includes when the subject of the information is content for the information to be disclosed. In the case of a reference, the effect of subsection (4) is that both the candidate and the referee would have to agree to the disclosure. Disclosure is also authorised where either the Board or the Scottish Ministers need to disclose certain information in order to carry out their functions in connection with a judicial appointment (for example, when inviting references or arranging criminal records checks).

53.     Under subsection (5), disclosure of confidential information that has already been in the public domain would not breach the subsection (1) duty against unauthorised disclosure.

54.     Subsection (6) provides that a disclosure of confidential information which is not authorised under subsection (3), or which discloses information not already in the public domain in terms of subsection (5), is actionable in the civil courts by the subject of the information where he or she can establish that loss or damage has resulted from the disclosure. For example, the situation might arise that Queens Counsel X was a candidate for judicial office and this was disclosed to solicitor Y who would otherwise have appointed X to a complex and lengthy case but decides not to on the basis that X, if successful, would be unable to commit to the case. If X was not successful in obtaining a judicial appointment and later discovered that he or she had been Y's initial choice and had effectively lost out on a significant case, X would be likely to be able to establish loss and would therefore have a right of action.

55.     To the extent that information is prohibited from disclosure by this section it is exempt from disclosure under a freedom of information request, by virtue of section 26(a) of the Freedom of Information (Scotland) Act 2002 (asp 13). That Act applies to the Board by virtue of paragraph 21 of schedule 1 to the Act.

Section 18 - Annual report

56.     This section places a requirement on the Board to produce and publish a report which sets out how they have carried out their functions during the year. The Board is required to submit the report to the Scottish Ministers and in turn the Scottish Ministers are required to lay a copy of the report before the Scottish Parliament.