Arrangement of sections
Part 1: Court records
1. High Court and Court
of Session records
2. Sheriff court records
3. Justice of the peace records
Part II: State, departmental and local authority records
4. Certain records to be
transferred from the Public Record Office
5. Provision for transfer
of departmental and local authority records to the Keeper
6. Records
transmitted by the Master of the Rolls
Part III: General
7. Advisory Council
8. Preservation, &c.
of records
9. Extracts from records
10. Fees for inspection and
search of records
11. Catalogues, &c.
of records
11A. Powers of the Keeper
12. Disposal of documents
not be be preserved by the Keeper
13. Provision for discharge
of duties of Extractor of the Court of Session
14. Interpretation
15. Repeal of obsolete provisions (footnote
1)
16. Repeals (footnote
1)
17. Short title
Schedules
First schedule -
Records in the Public Record Office to be transmitted to the Keeper
Second
schedule – Enactments repealed (footnote
2)
Footnotes
Chapter 43
An Act to make better provision for the preservation, care and custody
of the Public Records of Scotland, and for the discharge of the duties
of Principal Extractor of the Court of Session.
[6th July 1937]
Be it enacted by the King's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows :-
Part I: Court records
High Court and Court of Session records
1.(1) The records of the High Court of Justiciary and of the Court
of Session shall be transmitted to the Keeper of the Records of Scotland
(footnote 3)
(hereinafter referred to as the Keeper) at such times, and subject
to such conditions, as may respectively be prescribed by Act of Adjournal
or Act of Sederunt.
(2) An Act of Adjournal or an Act of Sederunt under the foregoing
subsection may fix different times and conditions of transmission
for different classes of records and may make provision for re-transmission
of records to the Court when such re-transmission is necessary for
the purpose of any proceedings before the Court, and for the return
to the Keeper of records so re-transmitted as soon as may be after
they have ceased to be required for such purpose.
Sheriff court records
2.(1) It shall be lawful for the Lord President of the Court of Session
(hereinafter referred to as the Lord President) on the application
of the Keeper and after consultation with the sheriff principal (footnote
4) of any sheriffdom, to make an order directing that such
of the sheriff court records of that sheriffdom as may be specified
in the order shall be transmitted to the Keeper on or before a date
specified therein not being earlier than three months from the date
of the order:
Provided that no such order shall apply to any record which
is of more recent date than twenty-five years before the date
of the order, unless the Lord President is satisfied that adequate
provision as regards care, indexing, and availability for consultation
cannot otherwise be made.
(2) Where any record transmitted in pursuance of the foregoing
subsection to the Keeper is required for the purpose of any proceedings
in the High Court of Justiciary, the Court of Session or any sheriff
court, the Keeper shall re-transmit such record to the clerk of
such court on any order of a judge of the said High Court or Court
of Session or of the sheriff as the case may be, and any record
so re-transmitted shall be returned by such clerk to the Keeper
as soon as may be after it has ceased to be required for the said
purpose.
(3) The sheriff principal (footnote
5) of each sheriffdom shall be responsible for the proper
care and preservation of the sheriff court records of that sheriffdom
which have not been transmitted under subsection (1) of this section
to the Keeper and shall, in compliance with any request which the
Keeper, with the consent of the Lord President, may from time to
time make, cause a report to be prepared and sent by the sheriff
clerk to the Keeper, giving such information as may be specified
in the request, regarding-
(a) the nature, situation and condition of all buildings in
which any such records are kept;
(b) the age and condition of such records;
(c) the arrangements made for their care and preservation,
and for indexing them and rendering them available for inspection
by the public; and
(d) any other matters connected with the care and preservation
of such records.
(4) In subsections (1) and (3) of this section, the expression
"sheriff principal" (footnote
6) does not include "sheriff " (footnote
7).
JP court records
(footnote 8)
2A.(1) A sheriff principal may, on the application of the Keeper, make an order directing that the JP court records of that sheriff principal’s sheriffdom which are specified in the order shall be transmitted to the Keeper within 6 months of the date of the order.
(2) An order under subsection (1) above shall not apply to any record which is dated less than 10 years before the date of the order unless the sheriff principal is satisfied that adequate provision as regards care, indexing and availability for consultation cannot otherwise be made.
(3) Where any record transmitted to the Keeper under subsection (1) above is required for the purpose of proceedings in the High Court of Justiciary, the Court of Session, or any sheriff court or JP court, the Keeper shall re-transmit the record to the clerk of the relevant court on an order of a judge of the High Court or Court of Session or of the sheriff or judge of a JP court (as the case may be), and a record so re-transmitted shall be returned by the clerk to the Keeper as soon as may be after it has ceased to be required for the purpose.
(4) The sheriff principal of each sheriffdom shall be responsible for the proper care and preservation of the JP court records of that sheriffdom which have not been transferred to the Keeper under subsection (1) above and shall, in compliance with any request which the Keeper may from time to time make, cause a report to be prepared and sent by the sheriff clerk to the Keeper, giving the information which is specified in the request, regarding—
(a) the nature, situation and condition of all buildings in which any such records are kept;
(b) the age and condition of such records;
(c) the arrangements made for—
(i) their care and preservation;
(ii) indexing them; and
(iii) rendering them available for inspection by the public; and
(d) any other matters connected with the care and preservation of such
records.
Justices of the peace records
3. (footnote 9)
Part II: State, departmental and local authority records
Certain records to be transferred from the
Public Record Office
4. The documents specified in the First Schedule to this Act, which
prior to the passing of this Act have been kept in the Public Record
office, shall, as soon as may be after the passing of this Act, be
transmitted by the Master of the Rolls to the Keeper for custody.
Provision for transfer of departmental and
local authority records to the Keeper
5.(1) It shall be lawful for any Government Department, board of trustees,
or other body or person having the custody of any records belonging
to His Majesty and relating exclusively or mainly to Scotland (other
than the documents specified in section four of this Act) to transmit
such records to the Keeper: (footnote
10)
(2) Notwithstanding anything contained in any enactment, it shall
be lawful for any local authority or any statutory body corporate
in Scotland, with the consent of the Keeper, to transmit such of
their records as relate exclusively or mainly to Scotland to the
Keeper for custody.
(2A) For the purposes of this section,"statutory body corporate"
means any body corporate established by or under a statute relating
to Scotland other than such bodies, or such classes of such bodies,
as may be specified by the Secretary of State in an order made by
statutory instrument.
(2B) Nothing in subsection (2) above shall apply to any burgh register
of sasines or to any book or public record relating thereto. (footnote
11)
(3) Any document transmitted under this section to the Keeper shall
be re-transmitted by him to the Department, local authority, body
or person from whom it was received [or to any part of the Scottish
Administration], on application to that effect made on the ground
that such re-transmission is necessary for the purposes of such
Department, local authority, body or person [or of such part of
the Scottish Administration]. Any record so re-transmitted shall
be returned to the Keeper as soon as may be after it has ceased
to be required for the purposes for which it was re-transmitted.
(footnote 12)
Records transmitted by the Master of the
Rolls
(footnote 13)
Part III: General
Advisory Council
7.(1) There shall be constituted a Council to be called the Scottish
Records Advisory Council, consisting of not more than twelve members,
who shall be persons, or representatives of public bodies or societies,
interested in the public records of Scotland.
(2) The members of the aforesaid Council including the chairman
shall be appointed by the Secretary of State, shall hold office
for three years from the date of their appointment, and shall be
eligible for reappointment on expiry of that period. (footnote
14)
(3) The aforesaid Council may submit proposals or make representations
to the Secretary of State, the Lord Justice General, or the Lord
President on questions relating to the public records of Scotland,
and in particular to the custody, preservation, indexing, and cataloguing
of those records, and to facilities for access to and examination
of them by members of the public.
(3A) The matters on which the aforesaid Council may advise the
Scottish Ministers include matters relating to the application of
the Freedom of Information (Scotland) Act 2002 (asp 13) to information
contained in records held by the Keeper. (footnote
15)
(4) The Council may make rules regarding their procedure and may
by such rules prescribe their quorum.
Preservation, &c. of records
8. The Keeper shall take such steps as may seem to him necessary for
the cleaning, preserving, repairing and arranging of any records transmitted
to him in pursuance of this Act or otherwise, and for the making of
calendars, indexes and catalogues thereof.
Extracts from records
9. The Keeper shall have power to issue extracts or certified copies
of any records transmitted to him in pursuance of this Act or otherwise,
and any such extract or copy shall be of the like force and effect
in all respects and for all purposes as if it had been an extract
or copy issued in accordance with the law and practice existing immediately
prior to the passing of this Act.
Fees for inspection and search of records
10. The Court of Session may from time to time, with the approval
of the Treasury, prescribe by Act of Sederunt a table of fees to be
charged for inspection, search, and making copies of any records transmitted
to the Keeper in pursuance of this Act or otherwise. Provision may
be made, in prescribing any such table, for the remission of fees
for the inspection of records for historical or literary purposes.
Catalogues, &c. of records
11. The Keeper shall have power (footnote
16) to purchase any catalogues, calendars and indexes of
records transmitted to him in pursuance of this Act or otherwise,
which may have been prepared by any person or body, and to arrange
for the sale of copies of any catalogue, calendar or index whether
prepared by him or by any other person or body.
Powers of the Keeper
(footnote 17)
11A Without prejudice to any other power he may have under this or
any other enactment, the Keeper may:
(a) accept responsibility for the safe keeping of records other
than public records; and
(b) acquire records and accept gifts and loans of records.
Disposal of documents
not be be preserved by the Keeper (footnote
18)
12.(1) The Lord Justice General, as regards records of the High Court
of Justiciary, the Lord President, as regards other court records,
and the Secretary of State, as regards any other records to which
this Act applies, may make regulations regarding the disposal by destruction
or otherwise of records which have been transmitted to the Keeper
in pursuance of this Act or otherwise, and which are of insufficient
value to justify their preservation or which would more appropriately
be in the custody of any person, body or institution other than the
Keeper.
(2) Regulations under this section shall not be made until a draft
thereof has lain before each House of Parliament for a period of
thirty days during the Session of Parliament, and if, before the
expiration of that period, an address is presented to His Majesty
by either House against the draft, no further proceedings shall
be taken thereon, without prejudice however to the making of any
new draft regulations:
Provided that in reckoning any such period of thirty days as
aforesaid no account shall be taken of any time during which
both Houses are adjourned for more than four days.
(3) No regulations made under this section shall authorise–
(a) the disposal of records relating to a Government department
or belonging to a local authority without the consent of that
department or authority; or
(b) the disposal by destruction of any records of older date
than the year 1707. (footnote
19)
12A. It shall be the duty of the Keeper to arrange that reasonable
facilities are available to the public for–
(a) inspecting; and
(b) obtaining copies of,
such records held by the Keeper as either fall to be disclosed
in accordance with the Freedom of Information (Scotland) Act 2002
(asp 13) or comprise information which is exempt information (within
the meaning of that Act) by virtue of section 25(2)(b)(ii) of that
Act. (footnote 20)
Provision for discharge of duties of Extractor
of the Court of Session
13.(1) The Keeper shall exercise and perform the powers and duties
conferred or imposed on the Principal Extractor of the Acts and Decrees
of the Court of Session by any order made in pursuance of section
seven of the Reorganisation of Offices (Scotland) Act 1928, and the
other powers and duties of such Principal Extractor and of his Assistant
shall be exercised and performed by such clerks and officers of the
Court of Session as the Principal Clerk of Session may, subject to
the directions of the Lord President, from time to time appoint.
(2) The vacancies existing at the passing of this Act in the offices
of Principal Extractor of the Acts and Decrees of the Court of Session
and of his Assistant shall not be filled, and those offices shall
cease to exist.
Interpretation
14.(1) In this Act, unless the context otherwise requires–
the expressions "records of the Court of Session" and
"records of the High Court of Justiciary" mean the registers,
minute books, processes, writs or documents belonging to or in
the custody of the Court of Session (including the Court of Teinds
as defined in the United Parishes (Scotland) Act 1876) and the
High Court of Justiciary respectively;
the expression "sheriff court records" includes the
registers, minute books, processes, writs or documents belonging
to or in the custody of sheriff courts or sheriff clerks;
[] (footnote 21)
the expression “JP court records” includes the registers, minute books, processes, writs or documents belonging to or in the custody of JP courts (footnote 22);
the expression "court records" includes the records
of the High Court of Justiciary, the records of the Court of Session
and sheriff court records. (footnote
23)
the expression “JP court” means a justice of the peace court (footnote 24);
the expression "local authority" means an authority
constituted under section 2 of the Local Government etc. (Scotland)
Act 1994, and includes a joint board and a joint committee;
the expression "statutory body corporate" shall be construed
in accordance with section 5(2A) above (footnote
25)
(2) Any question as to whether any document is or is not a record
of the High Court of Justiciary or of the Court of Session or is
or is not a sheriff court record (footnote
26) shall be determined by the Lord Justice General, in the
case of the said High Court, and in any other case by the Lord President.
[] (footnote 27)
Short title
17. This Act may be cited as the Public Records (Scotland) Act 1937.
First schedule
Records in the Public Record Office to be transmitted to the Keeper
1. Charter by King Richard I restoring to William, King of Scots,
the castle of Roxburgh and Berwick, and all the pactions concerning
homage to the King of England which Henry his father had extorted
by the capture of King William. Dated 5 December 1189.
2. Charter by King Richard I fixing the allowances to be made to
Scottish kings visiting the Court in England, with entertainment
and escort during the journey. Date 17 April 1194.
3. Bull of Pope Honorius III affirming the independence of the
Church in Scotland from any jurisdiction except that of the Roman
pontiff or his legate de latere. Date 21 November 1218.
4. Bull of Pope Innocent IV forbidding Scottish ecclesiastical
causes to be tried outside Scotland, except in special cases at
Carlisle or Durham. Dated 11 September 1245.
5. Bull of Pope Innocent IV addressed to the Crusaders of the Kingdom
of Scotland providing that redemption of Crusaders' vows shall not
be prejudged by any grant made to the King of England. Dated 4 September
1251.
6. Marriage Contract between Eric, King of Norway, and Margaret,
daughter of Alexander III, Kings of Scots. Dated 25 July 1281.
7. Minute declaring that King Edward I restores the manor of Aldenstone
in Cumberland to Nicholas, son and heir of Robert de Vipont, reserving
the mine. Date 28 January 1281-2.
8. Inventory of Papal Bulls, Charters and other Muniments in the
Royal Treasury at Edinburgh Castle, made by the King's clerks. Dated
29 September 1282.
9. Letters Patent by the Magnates of Scotland acknowledging Margaret,
Princess of Norway, as heiress of Scotland failing issue of her
grandfather and his late son. Date 5 February
1283-4.
Second schedule
(footnote 28)
Footnotes
- Sections 15 and 16 repealed by schedule 1 of the Statute Law Revision Act 1950.
- Schedule 2 repealed by schedule 1 of the Statute Law Revision Act 1950.
- Words “Keeper of the Records of Scotland” substituted for “Keeper of the Registers and Records of Scotland” by section 1(3)(7) of the Public Registers and Records (Scotland) Act 1948.
- Words “sheriff principal” substituted for “sheriff”
by section 4 of the Sheriff Courts (Scotland) Act 1971.
- Words “sheriff principal” substituted for “sheriff”
by section 4 of the Sheriff Courts (Scotland) Act 1971.
- Words “sheriff principal” substituted for “sheriff”
by section 4 of the Sheriff Courts (Scotland) Act 1971.
- Words “sheriff principal” substituted for “sheriff” and word “sheriff “ substituted for “sheriff substitute” by section 4 of the Sheriff Courts (Scotland) Act 1971.
- Section 2A was inserted by Section 2 of the Schedule to the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.
- Section 3 was repealed by schedule 1 of the District Courts (Scotland) Act 1975.
- Section 5(1) extended by: Section 64(9) of the Coal Industry Nationalisation Act 1946; Section 144(9) of the Transport Act 1968 (c. 73); Section 125(6) of the Railways Act 1993; Sections 5(4) and 8(3) of the Railway Heritage Act, 1996. Section 5(1) proviso repealed by schedule 4 of the Public Records Act 1958.
- Current section 5(2) (2A) and (2B) substituted for original section 5(2) by section schedule 13, para. 22(2)
of the Local Government etc (Scotland) Act, 1994.
- Words shown in square brackets in section 5(3) inserted by schedule 2, part 1, para. 17(2) of Statutory Instrument 1999/1820.
- Section 6 repealed by schedule 4 of the Public Records Act 1958.
- Amended by by section 19(1) of the National Heritage (Scotland) Act 1985.
- Section 7(3A) inserted by section 70 of the Freedom of Information (Scotland) Act 2002.
- Words “with the consent of the Treasury” repealed by schedule 2, part 1, para. 17(2) of Statutory Instrument 1999/1820
- Section 11A inserted by section 19(2) of the National Heritage (Scotland) Act 1985.
- Section 12 extended by section 5 of the Public Registers and Records (Scotland) Act 1948.
- Date changed from 1800 to 1707 and words “by destruction” added by section 19(3) of the National Heritage (Scotland) Act 1985.
- Section 12A inserted by section 70(3) of the Freedom of Information (Scotland) Act 2002.
- Definition of "justice of the peace records" repealed by schedule 2 of the District Courts (Scotland) Act 1975.
- Definition of “JP court records” was inserted by Section 2 of the Schedule to the Criminal Proceedings etc. (Reform) (Scotland) Act 2007.
- Reference to Justice of the Peace records repealed by schedule 2 of the District Courts (Scotland) Act 1975.
- Definition of “JP court” was inserted by Section 2 of the Schedule to the Criminial Proceedings etc. (Reform)(Scotland) Act 2007.
- Definitions of "local authority" and "statutory body corporate" inserted by schedule 13 para.. 22 of the Local Government (etc) (Scotland) Act 1994.
- Reference to Justice of the Peace records repealed by schedule 2 of the the District Courts (Scotland) Act 1975.
- Sections 15 and 16 repealed by schedule 1 of the Statute Law Revision Act 1950.
- Schedule 2 repealed by schedule 1 of the Statute Law Revision Act 1950.
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