Part 3
Removal of judges and sheriffs
Judges
15 Tribunal to consider fitness for judicial office
(1) The First Minister-
(a) must, when requested to do so by the Lord President, and
(b) may, in such other circumstances as the First Minister thinks fit,
constitute a tribunal to investigate and report on whether a person holding a judicial office to which this section applies is unfit to hold the office by reason of inability, neglect of duty or misbehaviour.
(2) The judicial offices to which this section applies are-
(a) the office of Lord President,
(b) the office of Lord Justice Clerk,
(c) the office of judge of the Court of Session,
(d) the office of Chairman of the Scottish Land Court, and
(e) the office of temporary judge.
(3) The First Minister may constitute a tribunal under subsection (1)(b) only if-
(a) the Lord President has been consulted (unless the tribunal is to consider the Lord President's fitness for office),
(b) the Lord Justice Clerk has been consulted (if the tribunal is to consider the Lord President's fitness for office).
(4) A tribunal constituted under this section is to consist of-
(a) two individuals who hold, or have held, high judicial office ("judge members"),
(b) one individual who is, and has been for at least 10 years, an advocate or solicitor, and
(c) one individual who does not hold (and has never held) high judicial office and is not (and never has been) an advocate or solicitor.
(5) "High judicial office" has the meaning given by section 60 of the Constitutional Reform Act 2005 (c.4).
(6) At least one of the judge members must be a member of the JCPC.
(7) At least one of the judge members must hold, or have held, office as a judge of the Court of Session.
(8) The selection of persons to be members of a tribunal under this section is to be made by the First Minister, with the agreement of-
(a) the Lord President (unless the tribunal is to consider the Lord President's fitness for office),
(b) the Lord Justice Clerk (if the tribunal is to consider the Lord President's fitness for office).
(9) If only one of the judge members is a member of the JCPC, that person shall chair the tribunal.
(10) If both of the judge members are members of the JCPC, the First Minister must appoint one of them to chair the tribunal.
(11) The member who chairs the tribunal has a casting vote if necessary.
(12) " JCPC" means Judicial Committee of the Privy Council.
16 Suspension during investigation
(1) Where the Lord President has requested that the First Minister constitutes a tribunal under section 15, the Lord President may, at any time before the tribunal reports to the First Minister, suspend the person who is to be, or is, the subject of the investigation, from office.
(2) Such a suspension lasts until the Lord President orders otherwise.
(3) A tribunal constituted under section 15 may, at any time before the tribunal reports to the First Minister, recommend to the First Minister that the person who is the subject of the tribunal's investigation is suspended from office.
(4) Such a recommendation must be in writing.
(5) Where the First Minister receives such a recommendation, the First Minister may suspend the person from office.
(6) Such a suspension lasts until the First Minister orders otherwise.
(7) Suspension under this section from the office of Lord President, Lord Justice Clerk, judge of the Court of Session or Chairman of the Scottish Land Court does not affect payment of salary for the office in respect of the period of suspension.
17 Further provision about tribunals
(1) A tribunal constituted under section 15 may require any person-
(a) to attend its proceedings for the purpose of giving evidence, or
(b) to produce documents in the person's custody or under the person's control.
(2) But a person on whom such a requirement is imposed is not obliged to answer any question or produce any document which he or she would be entitled to refuse to answer or produce in a court in Scotland.
(3) The Lord President may by regulations made by statutory instrument make provision as to the procedure to be followed by and before tribunals constituted under section 15.
(4) The Scottish Ministers may pay such remuneration to, and expenses of, members of tribunals constituted under section 15 as they think fit.
(5) The Scottish Ministers must pay such expenses as they consider are reasonably required to be incurred to enable a tribunal constituted under section 15 to carry out its functions.
18 Report of tribunal
(1) The report of a tribunal constituted under section 15 must-
(a) be in writing,
(b) contain reasons for its conclusion, and
(c) be submitted to the First Minister.
(2) The First Minister must lay the report before the Scottish Parliament.
19 Temporary judges: removal from office
(1) A person may be removed from office as a temporary judge by the First Minister.
(2) But he or she may be removed only if-
(a) a tribunal constituted under section 15 has reported to the First Minister that he or she is unfit to hold that office by reason of inability, neglect of duty or misbehaviour, and
(b) the First Minister has laid the report before the Scottish Parliament.
Sheriffs
20 Consideration of fitness for, and removal from, shrieval office
For section 12 of the 1971 Act there is substituted-
"Consideration of fitness for, and removal from, shrieval office
12A Tribunal to consider fitness for shrieval office
(1) The Scottish Ministers-
(a) must, when requested to do so by the Lord President of the Court of Session, and
(b) may, in such other circumstances as they think fit,
constitute a tribunal to investigate and report on whether a person holding a shrieval office to which this section applies is unfit to hold the office by reason of inability, neglect of duty or misbehaviour.
(2) The shrieval offices to which this section applies are-
(a) the office of sheriff principal,
(b) the office of sheriff, and
(c) the office of part-time sheriff.
(3) The Scottish Ministers may constitute a tribunal under subsection (1)(b) above only if the Lord President has been consulted.
(4) A tribunal constituted under this section is to consist of-
(a) one individual who is a qualifying member of the Judicial Committee of the Privy Council (on which see subsection (5) below),
(b) one individual who holds the relevant shrieval office (on which see subsection (6) below),
(c) one individual who is, and has been for at least 10 years, an advocate or a solicitor, and
(d) one individual who is not (and never has been) a qualifying member of the Judicial Committee of the Privy Council, who does not hold (and never has held) an office to which this section applies and who is not (and never has been) an advocate or solicitor.
(5) A qualifying member of the Judicial Committee of the Privy Council is someone who is a member of that Committee by virtue of section 1(2)(a) of the Judicial Committee Act 1833 (c.41) (that is, someone who is a member of the Privy Council who holds, or has held, high judicial office).
(6) The relevant shrieval office is-
(a) where the investigation is to be of a person's fitness to hold the office of sheriff principal, that office,
(b) where the investigation is to be of a person's fitness to hold the office of sheriff or part-time sheriff, the office of sheriff.
(7) The selection of persons to be members of a tribunal under this section is to be made by the Scottish Ministers, with the agreement of the Lord President of the Court of Session.
(8) The person mentioned in subsection (4)(a) is to chair the tribunal and has a casting vote if necessary.
12B Suspension during investigation
(1) Where the Lord President of the Court of Session has requested that the Scottish Ministers constitute a tribunal under section 12A of this Act, the Lord President may, at any time before the tribunal reports to the Scottish Ministers, suspend the person who is to be, or is, the subject of the investigation, from office.
(2) Such a suspension lasts until the Lord President orders otherwise,
(3) A tribunal constituted under section 12A of this Act may, at any time before the tribunal reports to the Scottish Ministers, recommend to the Scottish Ministers that the person who is the subject of the tribunal's investigation is suspended from office.
(4) Such a recommendation must be in writing.
(5) Where the Scottish Ministers receive such a recommendation, they may suspend the person from office.
(6) Such a suspension lasts until the Scottish Ministers order otherwise.
(7) Suspension under this section from the office of sheriff principal or sheriff does not affect payment of salary for the office in respect of the period of suspension.
12C Further provision about tribunals
(1) A tribunal constituted under section 12A of this Act may require any person-
(a) to attend its proceedings for the purpose of giving evidence, or
(b) to produce documents in the person's custody or under the person's control.
(2) But a person on whom such a requirement is imposed is not obliged to answer any question or produce any document which the person would be entitled to refuse to answer or produce in a court in Scotland.
(3) The Lord President of the Court of Session may by regulations made by statutory instrument make provision as to the procedure to be followed by and before tribunals constituted under section 12A of this Act.
(4) The Scottish Ministers may pay such remuneration to, and expenses of, members of tribunals constituted under section 12A of this Act as they think fit.
(5) The Scottish Ministers must pay such expenses as they consider are reasonably required to be incurred to enable a tribunal constituted under section 12A of this Act to carry out its functions.
12D Report of tribunal
(1) The report of a tribunal constituted under section 12A of this Act must-
(a) be in writing,
(b) contain reasons for its conclusion, and
(c) be submitted to the Scottish Ministers.
(2) The Scottish Ministers must lay the report before the Scottish Parliament.
12E Removal from office
(1) A person may be removed from the office of sheriff principal, sheriff or part-time sheriff by the Scottish Ministers.
(2) But he or she may be removed only if-
(a) a tribunal constituted under section 12A of this Act has reported to the Scottish Ministers that he or she is unfit to hold that office by reason of inability, neglect of duty or misbehaviour, and
(b) the Scottish Ministers have laid the report before the Scottish Parliament.
(3) Removal from the office of sheriff principal or sheriff is to be effected by the making by the Scottish Ministers of an order by statutory instrument.
(4) Such a statutory instrument-
(a) is to be subject to annulment in pursuance of a resolution of the Scottish Parliament,
(b) is not to be made so as to come into effect before the expiry, in relation to the instrument, of the period of 40 days mentioned in article 11 of the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 ( SI 1999/1096).
12F Interpretation of sections 12A to 12E
In sections 12A to 12E of this Act-
(a) "office of part-time sheriff" means an appointment (or re-appointment) as a part-time sheriff; and references to removal or suspension from that office are to be construed accordingly,
(b) a reference to the office of sheriff principal does not include a reference to an appointment as a temporary sheriff principal,
(c) a reference to the office of sheriff does not include a reference to the office of honorary sheriff."