Judiciary and Courts (Scotland) At 2008
A new statutory guarantee of "continuing judicial independence" is provided for in section 1 of that Act (which Scots Law news noted did not capture what judicial independence was necessarily about in an earlier entry) is among the provisions now in force. This guarantee provides
"(1) The following persons must uphold the continued independence of the judiciary—
(a) the First Minister,
(b) the Lord Advocate,
(c) the Scottish Ministers,
(d) members of the Scottish Parliament, and
(e) all other persons with responsibility for matters relating to—
(i) the judiciary, or
(ii) the administration of justice,
where that responsibility is to be discharged only in or as regards Scotland.
(2) In particular, the First Minister, the Lord Advocate and the Scottish Ministers—
(a) must not seek to influence particular judicial decisions through any special access to the judiciary, and
(b) must have regard to the need for the judiciary to have the support necessary to enable them to carry out their functions."
What section 1 (1) actually means for a standard backbench MSP given the express duties imposed on the Scottish Ministers opens up some nice questions of statutory interpretation.
The principal part of the 2008 Act brought into force relates to judicial appointments. The Judicial Appointments Board for Scotland, which previously existed as an administrative advisory body, is now placed on a statutory footing. The rules for membership of the Board are set out in Schedule 1 to the Act, confirming that the Board comprises an equal number of lay and legal members (the legal members comprising a judge of the Court of Session, a sheriff principal, a sheriff, a solicitor, and an advocate) and is chaired by a lay member. The lay members cannot be elected politicians or civil servants. The Board has power to make recommendations for appointments to
"(a) the office of judge of the Court of Session,
(b) the office of Chairman of the Scottish Land Court,
(c) the office of temporary judge …,
(d) the office of sheriff principal,
(e) the office of sheriff,
(f) the office of part-time sheriff".
Where Scottish Ministers have the power to appoint a judge (as under s 95 of the Scotland Act 1998) the minister may only appoint someone recommended by the Board. If the minister rejects the Board's recommendation then the minister must notify the Board of the reasons for rejection (section 11 of the 2008 Act).
The placing of the Board on a statutory footing gives added weight to criteria applied by the Board. As an overriding criterion the Board must select an individual "solely on merit" (s 12 of the 2008 Act) and only if the Board is satisfied the individual is of good character. The legal and judicial members of the Board are charged with assessing the "knowledge of the law, or skills and competence in the interpretation and application of the law." (s 13 of the 2008 Act). The Board is also to take into account
"the need to encourage diversity in the range of individuals available for selection to be recommended for appointment to a judicial office." (s 14)
although this is subject to the general requirement that appointments are to be made on merit.
Under s 95 of the Scotland Act 1998 the Prime Minister is to recommend to the Queen the person to be appointed the Lord president or Lord Justice Clerk, but may only act on the nomination of the First Minister (who is to consult the holder of the other office). Schedule 2 to the 2008 Act provides that the nomination by the First Minister remains at his or her discretion, but the nomination cannot be made until the First Minister has taken into account the views of a panel comprising the chairman of the Judicial Appointments Board, a lay member of the Board nominated by the chair, and 2 judges (where the vacancy is for the Lord Justice Clerk one of whom is to be the Lord President).
Other parts of the Act have come into force including section 21 (which provides that a solicitor advocate with right of audience in only the Court of Session or only the High Court of the Justiciary may be appointed as a Court of Session judge); section 2 (2)(b) and (c) (which provides that the Lord President is responsible for laying the views of Scottish judges before the Scottish Parliament); and sections 4 to 8 (which replace the Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 (on which see here, here, and here)) which provides for the Lord Justice Clerk to assume the functions of Lord President or the senior Inner House judge to assume the functions of the Lord Justice Clerk if either Lord President or Lord Justice Clerk is incapacitated or the post vacant.
Sectionjs 4 to 8 retain the requirement that where the Lord President or Lord Justice Clerk is incapacitated (defined in section 8 as being "unable by reason of ill health to carry out the functions of the office concerned") the relevant judge is "to be regarded as incapacitated only if the First Minister has received a declaration in writing signed by a majority of the total number of judges of the Inner House declaring that they are satisfied that" this is the case (which declaration must be signed by the other senior judge). Also retained is the rule that once such a declaration has been made the relevant judge "is to be regarded as incapacitated until the First Minister has received a declaration in writing signed by a majority of the total
number of judges of the Inner House declaring that they are satisfied that the [relevant judge] is no longer incapacitated." Again that declaration must be signed by the other senior judge before it has effect. This means, for example, that if the Lord President is declared to have been incapacitated the Lord Justice Clerk must actively assent to the Lord President's resumption of functions. What is to happen if a Lord Justice Clerk particularly enjoys acting as Lord President and is not keen to sign the declaration is not addressed, but while such judicial coups might make for good examination questions they are unthinkable in practice.
The 2008 Act extends the Senior Judiciary (Vacancies and Incapacity) (Scotland) Act 2006 to cover the situation where Lord President or Lord Justice Clerk is suspended under section 36 of the 2008 Act, pending an investigation to determine whether the judge is "unfit to hold the office by reason of inability,
neglect of duty or misbehaviour". As yet, this section is not in force. This lacuna would presumably be remedied promptly in the unlikely event that circumstances required.