Public Records (Scotland) Act 1937, 1937 c.43 1 Edw 8 and 1 Geo 6

Arrangement of sections

Schedules

First schedule - Records in the Public Record Office to be transmitted to the Keeper
Second schedule – Enactments repealed (footnote 5)

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 6) (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 7) 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 8) 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 9) does not include "sheriff " (footnote 10).

JP court records

(footnote 11)

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;

their care and preservation;
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.

Justices of the peace records
3. (footnote 12)

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 13)

(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 14)

(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 15)

Records transmitted by the Master of the Rolls

(footnote 16)

Part III: General

Advisory Council

(footnote 17)

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 18) 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 19)
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 to be preserved by the Keeper (footnote 20)
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 21)

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 22)

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 23)

the expression “JP court records” includes the registers, minute books, processes, writs or documents belonging to or in the custody of JP courts (footnote 24);

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 25)

the expression “JP court” means a justice of the peace court (footnote 26);

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 27)

(2) Any question as to whether or not a document is part of the records of a particular court is to be determined -
(a) in the case of the High Court, by the Lord Justice General,
(b) in any other case, by the Lord President (footnote 28)

[] (footnote 29)

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 30)

Footnotes

Section 3 was repealed by schedule 1 of the District Courts (Scotland) Act 1975.
Section 7 repealed by section 4(3) of the Public Services Reform (Scotland) Act 2010.
Section 15 repealed by schedule 1 of the Statute Law Revision Act 1950.
Section 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.
Section 7 repealed by part 1, section 4(3) of the Public Services Reform (Scotland) Act 2010.
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.
Definition of "court records" amended by Schedule 7(4) of the Criminal Justice and Licensing (Scotland) Act 2010.
Definition of "JP court" was inserted by Section 2 of the Schedule to the Criminal 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.
Section 14(2) amended by Schedule 7(4) of the Criminal Justice and Licensing (Scotland) Axt 2010.
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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