Search Legislation

Judiciary and Courts (Scotland) Act 2008

Status:

This is the original version (as it was originally enacted).

Judges

35Tribunal 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)Before constituting a tribunal under subsection (1)(b) the First Minister must consult—

(a)where the tribunal is to be constituted for the purpose of considering the Lord President’s fitness for office, the Lord Justice Clerk,

(b)where the tribunal is to be constituted for any other purpose, the Lord President.

(4)A tribunal constituted under this section is to consist of—

(a)two individuals who hold, or have held, high judicial office (“judicial 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 judicial members must be a member of the Judicial Committee of the Privy Council.

(7)At least one of the judicial 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)where the tribunal is to be constituted for the purpose of considering the Lord President’s fitness for office, the Lord Justice Clerk,

(b)where the tribunal is to be constituted for any other purpose, the Lord President.

(9)If only one of the judicial members is a member of the Judicial Committee of the Privy Council, that person is to chair the tribunal.

(10)If both of the judicial members are members of the Judicial Committee of the Privy Council, the First Minister must appoint one of them to chair the tribunal.

(11)The member who chairs the tribunal has a casting vote.

36Suspension during investigation

(1)Where the Lord President has requested that the First Minister constitute a tribunal under section 35, 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 35 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 be suspended from office.

(4)Such a recommendation must be in writing.

(5)The First Minister on receiving such a recommendation 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 any remuneration payable to, or in respect of, the office in respect of the period of suspension.

37Further provision about tribunals

(1)A tribunal constituted under section 35 may require any person—

(a)to attend its proceedings for the purpose of giving evidence,

(b)to produce documents in the person’s custody or under the person’s control.

(2)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)Subsection (4) applies where a person on whom a requirement has been imposed under subsection (1)—

(a)refuses or fails, without reasonable excuse, to comply with the requirement,

(b)refuses or fails, without reasonable excuse, while attending the tribunal proceedings to give evidence, to answer any question, or

(c)deliberately alters, conceals or destroys any document which the person is required to produce.

(4)The Court of Session may, on an application made to it by the tribunal—

(a)make such order for enforcing compliance as it sees fit, or

(b)deal with the matter as if it were a contempt of the Court.

(5)The Court of Session may by act of sederunt make provision as to the procedure to be followed by and before tribunals constituted under section 35.

(6)The Scottish Ministers may pay such remuneration to, and expenses of, members of tribunals constituted under section 35 as they think fit.

(7)The Scottish Ministers must pay such expenses as they consider are reasonably required to be incurred to enable a tribunal constituted under section 35 to carry out its functions.

38Report of tribunal

(1)The report of a tribunal constituted under section 35 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.

39Temporary judges: removal from office

(1)Where subsection (2) applies, a person may be removed from office as a temporary judge by the First Minister.

(2)This subsection applies if—

(a)a tribunal constituted under section 35 has reported to the First Minister that the person 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.

Back to top

Options/Help

Print Options

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Show Explanatory Notes for Sections: Displays relevant parts of the explanatory notes interweaved within the legislation content.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources