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Part 4
Senior Judiciary: vacancy, incapacity and suspension
21 Functions of the Lord President during vacancy, incapacity or suspension
(1) Subsection (2) applies during any period when-
(a) the office of Lord President is vacant,
(b) the Lord President is incapacitated, or
(c) the Lord President is suspended.
(2) During such a period-
(a) any function of the Lord President is exercisable instead by the Lord Justice Clerk,
(b) anything that falls to be done in relation to the Lord President falls to be done instead in relation to the Lord Justice Clerk,
(c) any function of the Lord Justice Clerk is exercisable instead by the senior judge of the Inner House, and
(d) anything that falls to be done in relation to the Lord Justice Clerk falls to be done instead in relation to the senior judge of the Inner House.
(3) For the purposes of this section-
(a) the Lord President is to be regarded as incapacitated only if the First Minister has received a declaration in writing signed by at least 5 judges of the Inner House declaring that they are satisfied that the Lord President is incapacitated,
(b) in such a case, the Lord President is to be regarded as incapacitated until the First Minister has received a declaration in writing signed by at least 5 judges of the Inner House declaring that they are satisfied that the Lord President is no longer incapacitated.
(4) Except in any period during which section 22(2) applies, the judges of the Inner House mentioned in subsection (3)(a) and (b) must include the Lord Justice Clerk.
(5) The First Minister must send a copy of a declaration received under subsection (3)(a) or (b) to the Presiding Officer of the Scottish Parliament.
(6) The reference in subsection (2)(a) to functions of the Lord President does not include the function of participating in a panel established under section 11(2) in connection with a vacancy, or an expected vacancy, in the office of Lord Justice Clerk.
22 Functions of the Lord Justice Clerk during vacancy, incapacity or suspension
(1) Subsection (2) applies during any period when-
(a) the office of Lord Justice Clerk is vacant,
(b) the Lord Justice Clerk is incapacitated, or
(c) the Lord Justice Clerk is suspended.
(2) During such a period-
(a) any function of the Lord Justice Clerk (including any function exercisable by virtue of section 21) is exercisable instead by the senior judge of the Inner House,
(b) anything that falls to be done in relation to the Lord Justice Clerk (whether or not by virtue of that section) falls to be done instead in relation to the senior judge of the Inner House,
(c) any function exercisable by the senior judge of the Inner House by virtue of that section is exercisable instead by the second senior judge of the Inner House, and
(d) anything that falls to be done in relation to the senior judge of the Inner House by virtue of that section falls to be done instead in relation to the second senior judge of the Inner House.
(3) For the purposes of this section-
(a) the Lord Justice Clerk is to be regarded as incapacitated only if the First Minister has received a declaration in writing signed by at least 5 judges of the Inner House declaring that they are satisfied that the Lord Justice Clerk is incapacitated,
(b) in such a case, the Lord Justice Clerk is to be regarded as incapacitated until the First Minister has received a declaration in writing signed by at least 5 judges of the Inner House declaring that they are satisfied that the Lord Justice Clerk is no longer incapacitated.
(4) Except in any period during which section 21(2) applies, the judges of the Inner House mentioned in subsection (3)(a) and (b) must include the Lord President.
(5) The First Minister must send a copy of a declaration received under subsection (3)(a) or (b) to the Presiding Officer of the Scottish Parliament.
23 Sections 21 and 22: supplementary
(1) Where-
(a) any function is exercisable by, or anything falls to be done in relation to, the senior judge of the Inner House by virtue of section 21 or 22, and
(b) that judge is unavailable,
the function is exercisable by, or the thing falls to be done in relation to, the second senior judge of the Inner House.
(2) Where-
(a) any function is exercisable by, or anything falls to be done in relation to, the second senior judge of the Inner House by virtue of section 22(2)(c) or (d) or subsection (1) of this section, and
(b) that judge is unavailable,
the function is exercisable by, or the thing falls to be done in relation to, the next senior judge of the Inner House who is available.
24 Sections 21 to 23: interpretation
(1) In sections 21 to 23-
(a) "incapacitated", in relation to the Lord President or the Lord Justice Clerk, means unable by reason of ill health to exercise the functions of the office concerned,
(b) "suspended" means suspended from office under section 16,
(c) a reference to the senior judge, the second senior judge or the next senior judge of the Inner House is to be construed by reference to seniority of appointment to a Division of the Inner House,
(d) a reference to-
(i) any function of the Lord President includes any function of the Lord Justice General,
(ii) anything that falls to be done in relation to the Lord President includes anything that falls to be done in relation to the Lord Justice General,
(iii) the functions of the office of Lord President includes the functions of the office of Lord Justice General.
(2) Where any other enactment makes provision for the exercise of any function of the Lord President by the Lord Justice Clerk, this Act does not affect the operation of that enactment except in relation to any period during which section 21(2) applies.
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