Explanatory note

This Order makes provision in connection with the Scottish Ministers’ powers in relation to the appointment of stipendiary magistrates under section 74(1) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.

Article 1 defines a “SMAC” as a Stipendiary Magistrates Advisory Committee. Article 2(1) and (2) requires a sheriff principal to establish a SMAC when a stipendiary magistrate vacancy has been identified in that sheriff principal’s sheriffdom. Article 2(3) provides that a SMAC is to be established for a particular sheriffdom. Article 2(4) requires that a SMAC must be disbanded after the vacancies identified by article 2(1) have been filled.

Article 3 sets out how a stipendiary magistrate vacancy is advertised. Article 4(1) provides that a SMAC must have 3 members, including the sheriff principal for the sheriffdom for which the stipendiary magistrates are to be appointed and the holder of a judicial office. Article 4(2) excludes members of the House of Commons, the House of Lords, the Scottish Parliament and local authority councillors from being members of a SMAC. Article 4(3) provides that if a member of a SMAC becomes one of the persons described in article 4(2) that person will cease to be a member of the SMAC. Article 4(4) ensures that if a vacancy arises in a SMAC the sheriff principal must appoint a successor. Article 4(5) designates the sheriff principal as the convenor of a SMAC. Article 4(6) gives the sheriff principal the power to nominate the holder of a judicial office to sit as a member of a SMAC in his place. However, the sheriff principal and not the nominee must carry out the function of appointing the other members of that SMAC.

Article 5(1) sets out that the role of a SMAC is to make recommendations to the Scottish Ministers on the appointment of stipendiary magistrates for the sheriffdom for which it has been established. Article 5(2) provides that a person may only be appointed as a stipendiary magistrate if a SMAC has recommended that person for appointment in that sheriffdom. Article 5(3) places a requirement on a SMAC to consider all applications submitted to it and provides that a SMAC may interview any of the applicants. Article 5(4) makes it a requirement that interviews be carried out by all 3 members of a SMAC. Article 5(5) provides that the if a SMAC does not make any recommendations for appointment the Scottish Ministers may re-advertise the vacancy in accordance with article 3.