Enjoy SmartLeges Premium!

Subscribe to SmartLeges Premium and enjoy the following advantages:

  • Consult as many laws as you need with no additional charge
  • Consult almost any law in several countries with the new advanced search engine. All legislation within reach!
  • Enjoy all SmartLeges functions without restrictions
See the plans

An essential and free application for professionals and students in the legal sector

Read more
 

Sign up for free!

Would you like to consult this and other laws complete?

Sign up for free to consult all the laws of SmartLeges in your mobile phone or tablet, as well as underline text, add notes...

Sign up for free!

Email Facebook Twitter Google Linkedin Tumblr

JUDICIARY AND COURTS (SCOTLAND) ACT 2008

Acts of the Scottish Parliament

Version 01/04/2016

2008 asp 6

Default Geographical Extent: E+W+S+N.I.


  • Part 1 (S). Judicial independence
  • Part 2. The judiciary
    • Chapter 1 (S). Head of the Scottish Judiciary
    • Chapter 2. Senior judiciary: vacancy, incapacity and suspension
    • Chapter 3 (S). Judicial appointments
      • Judicial Appointments Board for Scotland (S)
      • Lord President and Lord Justice Clerk (S)
      • Other Court of Session judges (S)
      • Sheriffs principal, sheriffs and part-time sheriffs (S)
    • Chapter 4 (S). Judicial conduct
      • Judicial conduct (S)
      • Judicial Complaints Reviewer (S)
      • Suspension (S)
    • Chapter 5 (S). Removal from office
      • Judges (S)
      • Sheriffs (S)
      • Justices of the peace (S)
    • Chapter 6 (S). Training and appraisal of justices of the peace
    • Chapter 7 (S). Meaning of “judicial office holder”
  • Part 3 (S). The courts
    • The Court of Session (S)
    • Sheriff courts (S)
    • Justice of the peace courts (S)
    • Court holidays (S)
  • Part 4 (S). [F17 THE SCOTTISH COURTS AND TRIBUNALS SERVICE]
    • Establishment (S)
    • Functions (S)
    • Provision of advice etc. to the Scottish Ministers (S)
    • Plan and report (S)
    • Ministerial powers (S)
  • Part 5 (S). General
  • Version 01/04/2016
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 01/04/2015
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 02/02/2015
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 28/05/2013
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 01/04/2010
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 20/02/2010
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 01/10/2009
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 01/06/2009
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 16/03/2009
  • Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140 Notice: Undefined variable: library in /var/www/vhosts/smartleges.com/juris/application/views/scripts/site/law-content.phtml on line 140
  • Version 29/10/2008

Introductory Text

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.

Part 1 (S)
Judicial independence



1 Guarantee of continued judicial independence (S)

(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.

Part 2
The judiciary



Chapter 1 (S)
Head of the Scottish Judiciary



2 Head of the Scottish Judiciary (S)

(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.
[F1 (2A) If, in carrying out the responsibility mentioned in subsection (2) (a) , the Lord President gives a direction of an administrative character to the President of the Sheriff Appeal Court, the President must comply with the direction.]

(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,
[F2 (ea) the Sheriff 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.

Annotations:

Amendments (Textual)

F1 S. 2(2A) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 16(2)(a); S.S.I. 2015/77, art. 2(2)(3), Sch.

F2 S. 2(6)(ea) inserted (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 16(2)(b); S.S.I. 2015/77, art. 2(2)(3), Sch.

Commencement Information

I1 S. 2 partly in force; s. 2 not in force at Royal Assent see s. 76; s. 2(1)(5)(6) in force for specified purposes and s. 2(2)(b)(c) in force at 1.6.2009 by S.S.I. 2009/192, art. 2, Sch.

I2 S. 2(1)(5)(6) in force at 1.4.2010 in so far as not already in force by S.S.I. 2010/39, art. 2(b), Sch.

I3 S. 2(2)(a)(d)(e) in force at 1.4.2010 by S.S.I. 2010/39, art. 2(b), Sch.

I4 S. 2(3)(4)(7) in force at 1.4.2010 by S.S.I. 2010/39, art. 2(b), Sch.


3 Delegation of functions (S)

(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.
Annotations:

Commencement Information

I5 S. 3 in force at 1.4.2010 by S.S.I. 2010/39, art. 2(b), Sch.


Chapter 2
Senior judiciary: vacancy, incapacity and suspension



Annotations:

Extent Information

E1 Pt. 2 Ch. 2 extended to E.W.N.I. (14.9.2009) by S.I. 2009/2231, art. 4


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.

Annotations:

Extent Information

E2 Pt. 2 Ch. 2 extended to E.W.N.I. (14.9.2009) by S.I. 2009/2231, art. 4


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.

Annotations:

Extent Information

E3 Pt. 2 Ch. 2 extended to E.W.N.I. (14.9.2009) by S.I. 2009/2231, art. 4


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 is exercisable instead by the senior judge of the Inner House,
(b) anything that falls to be done in relation to the Lord President falls to be done instead in relation to the senior judge of the Inner House,
(c) any function of the Lord Justice Clerk is exercisable instead by the second 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 second senior judge of the Inner House.
Annotations:

Extent Information

E4 Pt. 2 Ch. 2 extended to E.W.N.I. (14.9.2009) by S.I. 2009/2231, art. 4


7 Supplementary

(1) Where—

(a) any function is exercisable by, or anything falls to be done in relation to, the senior judge of the Inner House by virtue of section 4, 5 or 6, and
(b) that judge is unavailable,
the function is exercisable by, or the thing falls to be done in relation to, the second senior judge of the Inner House.
(2) Where—

(a) any function is exercisable by, or anything falls to be done in relation to, the second senior judge of the Inner House by virtue of section 6 or subsection (1) above, and
(b) that judge is unavailable,
the function is exercisable by, or the thing falls to be done in relation to, the next senior judge of the Inner House who is available.
(3) In calculating the total number of judges of the Inner House for the purposes of section 4(3) or 5(3) , the following are not to be counted—

(a) in the case of section 4(3) —
(i) the Lord President, and
(ii) during any period when section 5 applies, the Lord Justice Clerk,
(b) in the case of section 5(3) —
(i) the Lord Justice Clerk, and
(ii) during any period when section 4 applies, the Lord President, and
(c) in either case—
(i) any judge of the Inner House who is suspended from office, and
(ii) any office of judge of the Inner House which is vacant.
(4) The requirements in sections 4(4) and 5(4) do not apply for the purpose of declarations under sections 4(3) (a) and 5(3) (a) respectively if—

(a) the judges making the declarations are satisfied that both the Lord President and the Lord Justice Clerk are incapacitated, and
(b) the declarations state that this subsection applies.
(5) Nothing in this Chapter affects any remuneration payable to, or in respect of, the Lord President, the Lord Justice Clerk or any other judge of the Inner House.

Annotations:

Extent Information

E5 Pt. 2 Ch. 2 extended to E.W.N.I. (14.9.2009) by S.I. 2009/2231, art. 4


8 Interpretation of Chapter 2

(1) In this Chapter— “incapacitated”, in relation to the Lord President or the Lord Justice Clerk, means unable by reason of ill health to carry out the functions of the office concerned, and “suspended” means suspended from office under section 36.

(2) A reference in this Chapter to the senior judge, the second senior judge or the next senior judge of the Inner House is to be construed by reference to seniority of appointment to a Division of the Inner House.

(3) A reference in this Chapter to—

(a) any function of the Lord President includes any function of the Lord Justice General,
(b) anything that falls to be done in relation to the Lord President includes anything that falls to be done in relation to the Lord Justice General,
(c) the functions of the office of Lord President includes the functions of the office of Lord Justice General.
(4) Where any other enactment makes provision for the carrying out of any function of the Lord President by the Lord Justice Clerk, this Act does not affect the operation of that enactment except in relation to any period during which section 4 applies.

Annotations:

Extent Information

E6 Pt. 2 Ch. 2 extended to E.W.N.I. (14.9.2009) by S.I. 2009/2231, art. 4


Chapter 3 (S)
Judicial appointments



Judicial Appointments Board for Scotland (S)