Term of office
130.Under paragraph 6(1), members will be appointed initially for a period of no more than 4 years. The actual period of appointment is to be determined by the person making the appointment, which would be the Lord President for judicial members and the Scottish Ministers for legal and lay members.
131.Paragraph 6(2) and (3) enable a member to be re-appointed, but a member’s total term of office cannot exceed 8 years. By virtue of paragraph 18, the Code of Practice for Ministerial Appointments to Public Bodies in Scotland (“the Code”), issued by the Commissioner for Public Appointments in Scotland under section 2 of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4), applies to legal and lay appointments to the Board. The Code may be revised from time to time, therefore the following explanation of the interaction between paragraph 6 and the Code applies only to the edition of the Code dated April 2006, which is the current Code at the date of introduction of this Act. The Code provides that only one further period of re-appointment to public office is permissible without an open competition to fill the office. Under the Code, read with paragraph 6, a legal or lay member of the Board could be appointed initially for a period of 4 years and then re-appointed for a further 4 years without an open competition being held. The member would then have served the maximum term of office under paragraph 6(3) and could not be re-appointed, even after an open competition. To use a different example, if an individual was initially appointed for 3 years, and perhaps re-appointed without open competition for 2 years, the Code would require the member to re-apply in open competition for any further re-appointment up to their maximum term of office of 8 years under paragraph 6(3).
132.Judicial members’ appointments and re-appointment are subject to paragraph 6(1) to (3); however, the Code does not apply to these appointments because they are made by the Lord President, not by the Scottish Ministers.
133.Paragraph 6(4) sets out the various circumstances in which membership of the Board would cease. These include reasons relating to a change in the status of the member, for example, if any category of member becomes a civil servant or member of the Scottish Parliament they are disqualified from membership by virtue of paragraph 5. Another circumstance in which membership of the Board would cease is if the person no longer has the status which qualified them for the appointment in the first place (for example, a lay member becoming a practising solicitor, or a judge retiring from the Bench or being appointed as a Law Lord).
134.To avoid disruption to the work of the Board, paragraph 6(5) provides that should a member’s tenure come to an end, the Scottish Ministers in the case of legal and lay members and the Lord President in the case of judicial members may direct that a member’s appointment be extended by up to 6 months. This may be helpful in managing the succession of Board members and ensuring continuity of experience.
135.Paragraph 6(7) brings in additional flexibility for membership to be extended (or further extended following a paragraph 6(5) extension) without a direction by the Scottish Ministers or the Lord President, but only where necessary in order for a member to complete consideration of a particular judicial appointment which the Board is dealing with at the time when the member’s appointment ceases. For example, if a shrieval member of the Board was due to retire from the Board during an appointments process, the shrieval member could continue in office until he or she has concluded work on that appointments process.