Tribunals (Scotland) Act 2014

SCHEDULE 5 Appointment to Upper Tribunal

(introduced by section 32)

PART 1 Ordinary members

Appointment and eligibility

1 (1) It is for the Scottish Ministers to appoint a person as an ordinary member of the Upper Tribunal.

(2) A person is eligible for such appointment only if the person meets such relevant criteria as are prescribed by the Scottish Ministers in regulations.

2 In paragraph 1(2), “relevant criteria” includes criteria as to qualifications, experience and training.

PART 2 Legal members

Application of Part

3 (1) This schedule Part applies in relation to appointment of the legal members of the Upper Tribunal other than—

(a) a Vice-President of the Tribunal,

(b) a legal member of the Tribunal by reason of being a Chamber President in the First-tier Tribunal.

(2) The references in this schedule Part to a legal member of the Upper Tribunal are to be read accordingly.

Appointment and eligibility

4 (1) It is for the Scottish Ministers to appoint a person as a legal member of the Upper Tribunal.

(2) A person is eligible for such appointment only if qualifying under paragraph 5(1) or (2).

5 (1) A person qualifies under this sub-paragraph if the person is practising, and has practised for a period of not less than 7 years, as a solicitor or advocate in Scotland.

(2) A person qualifies under this sub-paragraph if the person falls within a description specified by the Scottish Ministers by regulations.

Eligibility under regulations

6 (1) Regulations under paragraph 5(2) may specify a description of a person by reference to the matters mentioned in sub-paragraph (2), (3) or (4).

(2) That is—

(a) current practice as a solicitor or barrister in England and Wales or Northern Ireland, and

(b) engagement in practice as such for a period of not less than 7 years.

(3) That is—

(a) previous engagement in practice for a period of not less than 7 years, as—

(i) a solicitor or advocate in Scotland, or

(ii) a solicitor or barrister in England and Wales or Northern Ireland, and

(b) subsequent engagement in any of the activities listed in sub-paragraph (5).

(4) That is, suitability attributable to experience in law through current or previous engagement in—

(a) any of the activities listed in sub-paragraph (5),

(b) an activity that is of a broadly similar nature to any of the activities listed in that sub-paragraph.

(5) The activities are—

(a) exercising judicial functions in any court or tribunal,

(b) practice or employment as a lawyer of any kind,

(c) whether or not in the course of practice or employment as a lawyer—

(i) advising on the application of the law,

(ii) drafting documents intended to affect rights or obligations under the law,

(iii) assisting persons involved in a legal or other process for the resolution of disputes as to the law,

(iv) acting as a mediator or arbitrator for the purpose of resolving disputes that are (or could be) the matter of legal proceedings,

(d) teaching or researching law at or for an educational institution.

7 (1) The Scottish Ministers may by regulations make provision—

(a) as regards the calculation of the 7-year period mentioned in paragraph 5(1) or 6(2)(b) or (3)(a) (for example, by reference to recent or continuous time),

(b) to which paragraph 6(3)(a) is subject (for example, by reference to debarment from practice),

(c) for the purpose of paragraph 6(4), about—

(i) the criteria for suitability (for example, by reference to equivalence to past or present practice as a solicitor),

(ii) the nature of experience required (for example, by reference to engagement for a particular period of time (within the United Kingdom or elsewhere)).

(2) The Scottish Ministers may by regulations modify the list in paragraph 6(5).