SCHEDULE 5Appointment to Upper Tribunal

PART 2Legal members

Application of Part

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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

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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).

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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

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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.

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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).