Temporary and part-time judiciary
Section 6 – Temporary sheriff principal
27.Section 6 which effectively re-enacts, with amendments, section 11 of the Sheriff Courts (Scotland) Act 1971 makes provision for the appointment of a temporary sheriff principal in the circumstances set out in subsection (1). In these circumstances, and if the Lord President requests, the Scottish Ministers must appoint a temporary sheriff principal. Those eligible for appointment are a sheriff (subsection (2)(a)) or a “qualifying former sheriff principal” (subsection (2)(b)) defined in subsection (3) as an individual who ceased to hold office as sheriff principal other than by virtue of an order under section 25 (removal from office) and who has not reached the age of 75. Subsection (4) sets out that a temporary sheriff principal may be appointed to exercise either all of the sheriff principal’s functions or only those which the sheriff principal is unable to perform or is precluded from exercising. The Lord President may request the appointment of a temporary sheriff principal on the ground that a vacancy has occurred in the office of sheriff principal, but only if the Lord President considers such an appointment to be necessary or expedient in order to avoid a delay in the administration of justice in the sheriffdom (subsection (6)).
Section 7 – Temporary sheriff principal: further provision
28.Section 7 makes further provision for the arrangements for a temporary sheriff principal. An appointment as a temporary sheriff principal ceases when it is recalled by the Scottish Ministers on the request of the Lord President (subsection (2)) or when the individual concerned ceases to be a sheriff or is suspended from that office (subsection (3)). (For suspension and removal of sheriffs, see section 22 and 25 respectively.) Except where the temporary sheriff principal is appointed to exercise only limited functions (in terms of section 6(4)(b)), he or she may exercise the jurisdiction and powers of sheriff principal of the sheriffdom (subsection (4)). A temporary sheriff principal retains his or her appointment as a sheriff (subsection (5)), but where the appointment is as a temporary sheriff principal of a sheriffdom other than that for which the person is a sheriff, he or she will only be able to act as a sheriff within the sheriffdom in which appointment as the temporary sheriff principal is held and not in his or her “home” sheriffdom (subsection (6)).
Section 8 – Part-time sheriffs
29.Section 8, which governs the appointment of part-time sheriffs, restates the majority of section 11A of the Sheriff Courts (Scotland) Act 1971 (sections 11A to 11D of which were inserted by the Bail, Judicial Appointments etc (Scotland) Act 2000). Subsection (1) provides for the Scottish Ministers to appoint individuals to “act as” sheriffs, and for individuals so appointed to be known as “part-time sheriffs”. The qualifications for appointment, set out in section 14, are the same as for sheriffs, and the Scottish Ministers may make an appointment only after consulting the Lord President (subsection (2)). In terms of subsection (3), an appointment as part-time sheriff lasts for five years, unless it ceases in accordance with section 20 (Cessation of appointment of judicial officers); but see section 9, which provides (with exceptions) for automatic re-appointment at the end of each five-year period. A part-time sheriff may exercise the powers and jurisdiction that attach to the office of sheriff in every sheriffdom (subsection (4)) and is subject to the administrative direction of the sheriff principal of the sheriffdom in which the part time sheriff is for the time being sitting (subsection (5)) (for the powers of sheriffs principal in this regard, see sections 27 and 28). Sheriffs principal are directed by subsection (6) to have regard to the desirability of ensuring that each part-time sheriff is given the opportunity of sitting for at least 20 days, and not more than 100 days, per year. Section 11A(5) of the 1971 Act, as amended by the Maximum Number of Part-Time Sheriffs (Scotland) Order 2006 (S.S.I 2006/257) imposed a limit of 80 upon the number of part-time sheriffs. Section 11A(5) is not re-enacted, and there is therefore no longer a limit on the number of part-time sheriffs.
Section 9 – Reappointment of part-time sheriffs
30.Section 9 restates, with some amendments, section 11B of the Sheriff Courts (Scotland) Act 1971. The Act does not, however, re-enact the prohibition on those aged 69 from being reappointed. Retirement ages in general are not reproduced in the Act and are instead consolidated through amendments made to the Judicial Pensions and Retirement Act 1993 by schedule 5, paragraph 8. Section 11B(9), of the 1971 Act which prevented part-time sheriffs who were solicitors from acting as part-time sheriffs in the same sheriff court district as that individual’s principal place of business, is substantially re-enacted in section 15(3).
31.The effect of section 9 is that, except where one of the conditions in subsection (1)(a)-(c) is met, or the individual in question has reached the statutory retirement age of 70 contained in section 26(1) of the Judicial Pensions and Retirement Act 1993, that individual must be re-appointed at the expiry of each five-year appointment.
Section 10 – Part-time summary sheriffs
32.This section creates the office of part-time summary sheriff on terms identical to those applying to part-time sheriffs. Reference is made to the notes at paragraph 29.
Section 11 – Reappointment of part-time summary sheriffs
33.Section 11 replicates the provisions of section 9 in respect of part-time summary sheriffs. Reference is made to the notes at paragraph 30.
