WHAT WE DO

The legislation governing the operation of the Board is the Judiciary and Courts (Scotland) Act 2008 (2008 Act) as brought into force by The Judiciary and Courts (Scotland) Act 2008 (Commencement No. 2) Order 2009.

The purpose of the Board is to recommend to the Scottish Ministers individuals for appointment to judicial offices within the Board's remit and to provide advice to Scottish Ministers in connection with such appointments.

The Board is responsible for the appointment to the following judicial offices:

• Judge of the Court of Session;
• Chair of the Scottish Land Court;
• Sheriff Principal;
• Sheriff;
• Part-time Sheriff;
• Temporary judge, except in cases where the individual to be appointed already holds or has held one of the following offices:
  • judge of the European Court
  • judge of the European Court of Human Rights
  • Chair of the Scottish Land Court
  • Sheriff Principal
  • Sheriff

The Scottish Ministers may specify other judicial offices to come within the Board's remit but can only do so by laying a Scottish Statutory Instrument before the Scottish Parliament.

Selection of Individuals for Appointments

The selection of individuals for recommendation must be made solely on merit and an individual may only be selected for recommendation if he or she is of good character (Section 12 of the 2008 Act).  Only the judicial and legal members of the Board may assess the applicants' knowledge of the law or their skill and competence in the interpretation and application of the law (Section 13 of the 2008 Act ).

Eligibility for Judicial Appointments

Please find below an explanation of the various criteria for each of the judicial offices within the Board's remit:

Judges of the Court of Session and Chairman of the Scottish Land Court

The regulations governing the appointment of Court of Session judges were first enshrined in the Courts Act 1672, which provided that five of the Lords of Session would be joined with the Justice General and the Justice Clerk to form the High Court of Justiciary.  Under the Criminal Procedure (Scotland) Act 1887 the High Court of Justiciary was reconstituted and that Act provided that every Senator of the College of Justice would be, by virtue of his or her appointment, a Lord Commissioner of Justiciary.

The basic regulation is Article xix of the Union with England Act 1707, which retained the existence of the Court of Session and College of Justice under the law of Scotland for all time coming.  It conferred power on the United Kingdom Parliament to appoint the Lords Ordinary of Session but restricted the appointments to Advocates of five years standing.  Writers to the Signet of ten years standing could be appointed as Lords Ordinary, if they passed the examination in civil law before the Faculty of Advocates two years before taking up their seat on the Bench.  The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 made further provisions regarding the criteria under which Sheriffs Principal, Sheriffs and certain types of solicitors may be appointed as a Judge.

Sheriffs Principal and Sheriffs who have continuously exercised their respective functions for a period of at least five years are eligible for appointment, as are solicitors who have continuously had a right of audience in both the Court of Session and High Court of Justiciary for at least five years.  The same Act makes clear that temporary Sheriffs Principal and part-time Sheriffs are not eligible for appointment.

To summarise, the individuals eligible to apply for appointment as a Senator are:

• Advocates of five years standing;
• Writers to the Signet of ten years standing who have passed the examination in civil law two years before taking up their seat on the Bench;
• Sheriffs Principal and Sheriffs who have exercised their respective functions continuously for a period of at least five years;
• Solicitors who have had rights of audience before both the Court of Session and the High Court of Justiciary continuously for a period of not less than five years.

Sheriffs Principal, Sheriffs and Part-Time Sheriffs

Eligibility for these judicial offices is set out in the Sheriff Courts (Scotland) Act 1971.  No person may be appointed Sheriff Principal or Sheriff unless they are and have been legally qualified for at least 10 years.  A person who is legally qualified is either an Advocate or a Solicitor.

Whilst holding a full-time shrieval appointment, post-holders cannot engage directly or indirectly in any private practice or business, or be in partnership with or employed by, or act as an agent for, any person so engaged.  Part-time Sheriffs are entitled to continue their private practice or business.  Employees of the Government Legal Service for Scotland (GLSS) or the Crown Office and Procurator Fiscal Service must resign if they wish to take up a part-time shrieval appointment.