PART 2

Organisational arrangements
CHAPTER 1

Membership types

Overview and main types

Overview of membership
13
1
Each of the First-tier Tribunal and the Upper Tribunal is to consist of its ordinary, legal and judicial members.
2
Any type of member of the First-tier Tribunal or the Upper Tribunal is not, merely by reason of having that type of membership of the Tribunal, precluded from having any type of membership of the other Tribunal.
3
In this Act, the references to the members of the Scottish Tribunals are to—
a
the ordinary and legal members of either or both of the Tribunals by virtue of sections 15 and 16, and
b
the judicial members of either or both of the Tribunals by virtue of section 17 as read with section 19.

Capacity of members
14
1
Membership of the Scottish Tribunals as an ordinary or legal member of the Tribunals has the effect of granting such a member judicial status and capacity for the purpose for which this section makes provision.
2
For avoidance of doubt—
a
a judicial member of the Scottish Tribunals has judicial status and capacity for the purpose for which this section makes provision by reason of holding judicial office,
b
an extra judge derives judicial status and capacity in relation to the First-tier Tribunal or the Upper Tribunal (as the case may be) for the purpose for which this section makes provision from authorisation to act as mentioned in section 18(4).
3
This section makes provision—
a
in the case of an ordinary, legal or judicial member of the Scottish Tribunals, for the purpose of holding the position of and acting as such a member,
b
in the case of an extra judge of the First-tier Tribunal or the Upper Tribunal, for the purpose of holding that position and acting as mentioned in section 18(4).

First-tier members
15
1
A person is an ordinary member of the First-tier Tribunal if the person is that type of member of the First-tier Tribunal through—
a
transfer-in as such by virtue of section 29(b), or
b
appointment as such by virtue of section 32(1).
2
A person is a legal member of the First-tier Tribunal if the person is—
a
that type of member of the First-tier Tribunal through—
i
transfer-in as such by virtue of section 29(b), or
ii
appointment as such by virtue of section 32(1), or
b
however holding the position, a Chamber President or Deputy Chamber President in the First-tier Tribunal.
3
Despite subsection (2)(b), a person assigned as a Temporary Chamber President in the First-tier Tribunal, if a judicial member of the Tribunal, remains such a member of the Tribunal.

Upper members
16
1
A person is an ordinary member of the Upper Tribunal if the person is that type of member of the Upper Tribunal through—
a
transfer-in as such by virtue of section 29(b), or
b
appointment as such by virtue of section 32(3).
2
A person is a legal member of the Upper Tribunal if the person is—
a
that type of member of the Upper Tribunal through—
i
transfer-in as such by virtue of section 29(b), or
ii
appointment as such by virtue of section 32(3),
b
however holding the position, a Chamber President in the First-tier Tribunal except a Temporary Chamber President, or
c
however holding the position, a Vice-President of the Upper Tribunal.
3
Despite subsection (2)(c)—
a
a person assigned as a Vice-President of the Upper Tribunal under section 25(1) or (2) remains a judicial member of the Tribunal,
b
a person assigned as a Temporary Vice-President of the Upper Tribunal, if a judicial member of the Tribunal, remains such a member of the Tribunal.

Judiciary eligible to sit

Sheriffs and judges
17
1
By reason of holding judicial office, a person is eligible to act as a member of the First-tier Tribunal if the person is a sheriff (including a part-time sheriff).
2
By reason of holding judicial office, a person is eligible to act as a member of the Upper Tribunal if the person is—
a
apart from the Lord President and the President of Tribunals, a judge of the Court of Session (including a temporary judge),
b
the Chairman of the Scottish Land Court, or
c
a sheriff (except a part-time sheriff).
3
A sheriff may act as a member of—
a
the First-tier Tribunal, or
b
the Upper Tribunal,
only if authorised to do so by the President of Tribunals.
4
A judge of the Court of Session or the Chairman of the Scottish Land Court may act as a member of the Upper Tribunal only if authorised to do so by the President of Tribunals (but see next instead for the Lord President and the President of Tribunals).
5
By reason of holding office within the Scottish Tribunals, each of the Lord President and the President of Tribunals is a member of the Upper Tribunal and needs no further authorisation to act as such.
6
An authorisation for the purpose of subsection (3)(a) or (b) or (4)—
a
requires—
i
the Lord President's approval (including as to the person to be authorised), and
ii
the agreement of the person concerned,
b
in the case of a sheriff (apart from a sheriff principal), also requires the concurrence of the relevant sheriff principal.
7
An authorisation for the purpose of subsection (3)(a) or (b) or (4) remains in effect until such time as the President of Tribunals may determine (with the same approval, agreement and concurrence as is referred to in subsection (6)).

Authorisation of others
18
1
If requested to do so by the President of Tribunals, the Scottish Ministers may issue a temporary authorisation—
a
for a person falling within subsection (1A) to assist in the disposal of the business of the First-tier Tribunal,
b
for a person falling within subsection (2) to assist in the disposal of the business of the Upper Tribunal.
1A
A person falls within this subsection if the person is—
a
a judge of a relevant UK court or tribunal,
b
a former judge of a relevant UK court or tribunal,
c
a judge of an overseas court or tribunal, or
d
a judge of an international court or tribunal.
2
A person falls within this subsection if the person is—
a
a former—
i
judge of the Court of Session (including temporary judge),
ii
Chairman of the Scottish Land Court, or
iii
sheriff (except part-time sheriff), ...
b
a judge of a relevant UK court or tribunal,
c
a former judge of a relevant UK court or tribunal,
d
a judge of an overseas court or tribunal, or
e
a judge of an international court or tribunal.
3
Any request for the purpose of subsection (1) may not be made without—
a
the Lord President's approval, and
b
the agreement of the person concerned.
4
An authorisation under subsection (1) is for the person concerned to act as if a judicial member of the Tribunal concerned during the period for which it is issued.
5
The period mentioned in subsection (4)—
a
requires the same approval and agreement as is referred to in subsection (3), and
b
may be extended by the Scottish Ministers (with such approval and agreement).
6
The Scottish Ministers may make payments of sums with respect to any time spent by a person while acting as mentioned in subsection (4) by virtue of authorisation under subsection (1).
7
An authorisation under subsection (1) may not be issued if the person concerned—
a
is aged 75 years or over, or
b
has been removed from judicial office because of unfitness by reason of inability, neglect of duty or misbehaviour (or is for the time being suspended from such office in connection with an investigation into the question of such unfitness).
8
In the case of a person mentioned in subsection (1A)(a), (c) or (d) or (2)(b), (d) or (e), subsections (1) and (5) are subject to such further arrangements as the Scottish Ministers may make with a governmental or other body responsible for the administration of the court or tribunal concerned, or its judiciary, for the purposes of those subsections.
8A
In the case of a person mentioned in subsection (1A) or (2)(b), (c), (d) or (e), if the person has not previously taken the required oaths, the person must take them in the presence of the President of Tribunals before acting as mentioned in subsection (4).
9
In addition—
a
the previous taking by a person of the required oaths counts (so far as necessary) as if it were the taking of them in connection with acting as mentioned in subsection (4),
b
section 3 applies in relation to a person who is authorised to act as mentioned in subsection (4)—
i
as it does in relation to the members of the Scottish Tribunals, and
ii
during the period for which the relevant authorisation is issued.
10
In this section—
- “
an international court or tribunal
” means a court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—
  1. an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or
  2. a resolution of the Security Council or General Assembly of the United Nations,
- “
an overseas court or tribunal
” means a court or tribunal established under the law of a country or territory outwith the United Kingdom,
- “
a relevant UK court or tribunal
” means a court or tribunal established under the law of one or more parts of the United Kingdom, excluding a court or tribunal established under the law of Scotland only,
- “
the required oaths
” means the oaths of allegiance and the judicial oath as set out in the Promissory Oaths Act 1868.

Judicial membership
19
1
In this Act, a reference to a judicial member of the First-tier Tribunal is to a sheriff who is authorised for the purpose of section 17(3)(a).
2
In this Act, a reference to a judicial member of the Upper Tribunal is to—
a
the Lord President or the President of Tribunals, or
b
a person who is authorised for the purpose of section 17(3)(b) or (4).
3
A reference in this Act to a judicial member of the First-tier Tribunal or of the Upper Tribunal does not include an extra judge even where authorised to act as mentioned in section 18(4).
4
In this Act—
a
a reference to an extra judge in relation to the First-tier Tribunal is to a person falling within section 18(1A) (as read with section 18(4)),
b
a reference to an extra judge in relation to the Upper Tribunal is to a person falling within section 18(2) (as read with section 18(4)).
S. 13(3) applied by 2008 asp 6 sch. 1 para. 16A(8) (as inserted (1.4.2015) by Tribunals (Scotland) Act 2014 (asp 10), s. 83(2), Sch. 9 para. 12(5) (with Sch. 9 para. 8); S.S.I. 2015/116, art. 2)
S. 13 in force at 1.4.2015 by S.S.I. 2015/116, art. 2
S. 14 in force at 1.4.2015 by S.S.I. 2015/116, art. 2
S. 15 in force at 1.4.2015 by S.S.I. 2015/116, art. 2
S. 16 in force at 1.4.2015 by S.S.I. 2015/116, art. 2
S. 17 in force at 1.4.2015 by S.S.I. 2015/116, art. 2
S. 18 in force at 1.4.2015 by S.S.I. 2015/116, art. 2
S. 19 in force at 1.4.2015 by S.S.I. 2015/116, art. 2
S. 18(1A) inserted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(3), 18(2)(3); S.S.I. 2022/146, reg. 2
S. 18(8)(8A) substituted for s. 18(8) (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(6), 18(2)(3); S.S.I. 2022/146, reg. 2
S. 18(1) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(2), 18(2)(3); S.S.I. 2022/146, reg. 2
Word in s. 18(2)(a)(iii) repealed (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(4)(a), 18(2)(3); S.S.I. 2022/146, reg. 2
S. 18(2)(b)-(e) substituted for s. 18(2)(b) (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(4)(b), 18(2)(3); S.S.I. 2022/146, reg. 2
Words in s. 18(4) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(5), 18(2)(3); S.S.I. 2022/146, reg. 2
S. 18(10) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(7), 18(2)(3); S.S.I. 2022/146, reg. 2
Words in s. 14(2)(b) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(2)(a), 18(2)(3); S.S.I. 2022/146, reg. 2
Words in s. 14(3)(b) inserted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(2)(b), 18(2)(3); S.S.I. 2022/146, reg. 2
Words in s. 19(3) inserted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(3)(a), 18(2)(3); S.S.I. 2022/146, reg. 2
S. 19(4) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(3)(b), 18(2)(3); S.S.I. 2022/146, reg. 2