Part 2
Judicial appointments
Judicial Appointments Board for Scotland
2 The Judicial Appointments Board for Scotland
(1) There is established a body to be known as the Judicial Appointments Board for Scotland, and referred to in this Act as "the Board".
(2) Schedule 1 makes further provision about the Board, including provision about its membership.
3 Functions of the Board
(1) The functions of the Board are-
(a) to recommend to members of the Scottish Executive individuals for judicial appointments, and
(b) generally to provide advice to members of the Scottish Executive in connection with judicial appointments.
(2) A member of the Scottish Executive-
(a) must not exercise a judicial appointment function in relation to any judicial appointment until the Board has made a recommendation in relation to the appointment under subsection (1)(a), and
(b) in deciding whom to appoint (or, as the case may be, to nominate or recommend for appointment), must have regard to the Board's recommendation.
(3) In this section-
"judicial appointment" means an appointment to any judicial office within the Board's remit (on which see section 4);
"judicial appointment function" means a function of the First Minister or the Scottish Ministers under any enactment of making a judicial appointment, or nominating or recommending an individual for such an appointment.
4 Judicial offices within the Board's remit
(1) The judicial offices within the Board's remit are-
(a) the office of judge of the Court of Session,
(b) the office of Chairman of the Scottish Land Court,
(c) the office of temporary judge (except in any case where the individual to be appointed to the office is or has been a sheriff principal or a sheriff),
(d) the office of sheriff principal,
(e) the office of sheriff,
(f) the office of part-time sheriff, and
(g) such other judicial offices as the Scottish Ministers may by order made by statutory instrument specify.
(2) The Scottish Ministers may specify a judicial office under subsection (1)(g) only if the First Minister or the Scottish Ministers have the function of making appointments to the office, or of nominating or recommending individuals for such appointments.
(3) A statutory instrument containing an order under subsection (1)(g) is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(4) In subsections (1)(g) and (2) and this subsection, "judicial office" means-
(a) judge of any court,
(b) member of any tribunal,
(c) any other office or appointment exercising functions of a judicial nature,
and includes any part-time or temporary judicial office.
5 Independence of the Board
(1) The Board, in the exercise of its functions, is not to be subject to the direction or control of any member of the Scottish Executive.
(2) Subsection (1) is subject to section 10(2) (Scottish Ministers' power to direct form and content of Board's annual report).
6 Selection to be on merit and good character
(1) This section applies where the Board is, for the purpose of exercising its function under section 3(1)(a) in relation to any judicial appointment, selecting an individual or individuals to be recommended by it for appointment.
(2) Selection must be solely on merit.
(3) The Board may select an individual only if it is satisfied that the individual is of good character.
7 Encouragement of diversity
(1) The Board must, in exercising its functions, have regard to the need to encourage diversity in the range of individuals available for selection to be recommended for judicial appointments.
(2) Subsection (1) is subject to section 6.
8 Guidance
(1) The Scottish Ministers may issue guidance to the Board as to the procedures to be followed by it in the exercise of its functions.
(2) Such guidance may, in particular, relate to the manner in which the Board is to publicise vacancies and identify candidates for any appointment.
(3) The Board must, in exercising its functions, have regard to any guidance issued by the Scottish Ministers under this section.
(4) Before issuing any guidance under this section, the Scottish Ministers must-
(a) consult the Lord President and the Board, and
(b) after doing so, lay a draft of the proposed guidance before the Scottish Parliament.
(5) The Scottish Ministers must publish any guidance issued by them under this section.
9 Confidentiality of information
(1) Any person (whether or not a member of the Board or its staff) who has provided or obtained confidential information in connection with the exercise of the Board's functions must not disclose the information unless the disclosure is authorised.
(2) Information is confidential for the purposes of subsection (1) if it relates to an identified or identifiable individual.
(3) Disclosure of information is authorised for the purposes of subsection (1) only so far as it is-
(a) made with the consent of the individual to whom the information relates,
(b) necessary for the purposes of the exercise by the Board of its functions,
(c) required for the purposes of any legal proceedings, whether criminal or civil, (including for the purposes of the investigation of any offence or suspected offence), or
(d) authorised or required by any other enactment.
(4) This section does not prevent the disclosure of information which is already, or has previously been, in the public domain.
(5) Any disclosure of information in breach of the duty imposed by subsection (1) which causes loss or damage to the individual to whom the information relates is actionable at the instance of that individual.
10 Annual report
(1) The Board must submit to the Scottish Ministers annually a general report on the exercise of the Board's functions during the year to which the report relates.
(2) In preparing the report, the Board must comply with any directions given by the Scottish Ministers as to the form and content of the report.
(3) The Scottish Ministers must lay before the Scottish Parliament a copy of each report submitted to them by the Board under subsection (1).
(4) The Board must publish each report submitted by it to the Scottish Ministers under subsection (1).
Appointment of Lord President and Lord Justice Clerk
11 Appointment of Lord President and Lord Justice Clerk
(1) This section applies where a vacancy arises, or is expected to arise, in the office of Lord President or the office of Lord Justice Clerk.
(2) The First Minister must establish a panel in accordance with schedule 2.
(3) The function of the panel is to recommend to the First Minister individuals who are suitable for appointment to fill the vacancy.
(4) The First Minister-
(a) must not, for the purposes of section 95(2) of the Scotland Act 1998 (c.46), nominate any individual for appointment to fill the vacancy until the panel has made its recommendation under subsection (3), and
(b) in deciding whom to nominate for the purposes of that section, must have regard to the panel's recommendation.
12 Selection to be on merit and good character
(1) This section applies where a panel established under section 11(2) is selecting an individual or individuals to be recommended by it as suitable for appointment.
(2) Selection must be solely on merit.
(3) The panel may select an individual only if it is satisfied that the individual is of good character.
Re-employment of retired judges and sheriffs
13 Re-employment of retired judges
In section 22(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73) (re-employment of retired judges)-
(a) the words "with the consent of the Scottish Ministers" are omitted, and
(b) in paragraph (a), after "Session" there is inserted "(and did not cease to hold that office by virtue of section 95(6) of the Scotland Act 1998 (c.46))".
14 Re-employment of retired sheriffs principal and sheriffs
After section 14 of the 1971 Act there is inserted-
" 14A Re-employment of retired sheriffs principal and sheriffs
(1) A sheriff principal may, if it appears to him to be expedient as a temporary measure in order to facilitate the disposal of business in the sheriff courts of the sheriffdom, appoint a qualifying former sheriff principal or sheriff to act as a sheriff of that sheriffdom during such period or on such occasions as the sheriff principal thinks fit.
(2) A qualifying former sheriff principal is someone who-
(a) ceased to hold that office other than by virtue of an order under section 12E of this Act, and
(b) has not reached the age of 75 years.
(3) A qualifying former sheriff is someone who-
(a) last held that office for the sheriffdom for which the appointment is to be made,
(b) ceased to hold that office other than by virtue of an order under section 12E of this Act or by being appointed as a sheriff principal, and
(c) has not reached the age of 75 years.
(4) A person appointed under subsection (1) above is not to be treated as a sheriff for the purposes of any statutory provision or rule of law relating to-
(a) the appointment, retirement, removal or disqualification of sheriffs,
(b) the tenure of office and oaths to be taken by sheriffs, or
(c) the remuneration, allowances or pensions of sheriffs.
(5) But, otherwise, such a person is to be treated for all purposes as a sheriff of the sheriffdom for which the person is appointed (and so may perform any of the functions of a sheriff of that sheriffdom).
(6) The Scottish Ministers may pay to, or in respect of, a person appointed under subsection (1) above such remuneration or allowances as they may determine.
(7) Despite subsection (1), the period during which or an occasion on which a person appointed under that subsection may act under that appointment does not extend beyond or is not to be after the person reaches the age of 75 years.
(8) Despite the expiry (whether by virtue of subsection (7) above or otherwise) of any period for which a person is appointed under subsection (1) above-
(a) the person may attend at a sheriff court for the purpose of continuing to deal with, giving judgment in, or dealing with any matter relating to, any case begun before the person while acting under that appointment, and
(b) for that purpose, and for the purpose of any proceedings arising out of any such case or matter, the person is to be treated as acting, or as the case may be, having acted, under that appointment.
(9) In this section-
(a) "sheriff principal" includes "temporary sheriff principal" only in the first reference in subsection (1), and
(b) "sheriff" does not include "part-time sheriff" or "honorary sheriff".".