Stewart v Secretary of State for Scotland
| Jurisdiction | England & Wales |
| Judge | LORD LLOYD OF BERWICK,LORD JAUNCEY OF TULLICHETTLE,LORD STEYN,LORD HUTTON,LORD SAVILLE OF NEWDIGATE |
| Judgment Date | 22 January 1998 |
| Judgment citation (vLex) | [1998] UKHL J0122-3 |
| Docket Number | No 7 |
| Court | House of Lords |
| Date | 22 January 1998 |
[1998] UKHL J0122-3
HOUSE OF LORDS
Lord Lloyd of Berwick
Lord Jauncey of Tullichettle
Lord Steyn
Lord Hutton
Lord Saville of Newdigate
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Jauncey of Tullichettle. For the reasons which he gives, I, too, would dismiss the appeal.
My Lords,
The appellant was appointed Sheriff Substitute at Wick with effect from 1 October 1962 and served until August 1992 when he was removed from the office of Sheriff for the Sheriffdom of Grampian, Highland and Islands by the Sheriff (Removal from Office) Order 1992 (S.I. 1992 No. 1677) (the Order of 1992). The Order followed a Report by the Lord President of the Court of Session and the Lord Justice Clerk ("the Senior Judges") under section 12(1) of the Sheriff Courts (Scotland) Act 1971 to the effect that he was unfit for the office of Sheriff by reason of inability. The question in this appeal is what meaning is to be given to the word inability in that subsection. The appellant contends for a narrow construction limited to physical or mental infirmity whereas the respondent submits that a much wider construction embracing any form of incapability of performing the functions of a judge is appropriate. Section 12 is in inter alia the following terms:
"12. (1)The Lord President of the Court of Session and the Lord Justice Clerk may of their own accord and shall, if they are requested so to do by the Secretary of State, undertake jointly an investigation into the fitness for office of any sheriff principal or sheriff and, as soon as practicable after completing that investigation, shall report in writing to the Secretary of State either -
(a) that the sheriff principal or sheriff is fit for office, or
(b) that the sheriff principal or sheriff is unfit for office by reason of inability, neglect of duty or misbehaviour
and shall in either case include in their report a statement of their reasons for so reporting.
(2) The Secretary of State may, if a report is made to him under subsection (1) above to the effect that any sheriff principal or sheriff is unfit for office by reason of inability, neglect of duty or misbehaviour, make an order removing that sheriff principal or sheriff from office."
On 19 June 1976 Lord President Emslie and Lord Justice Clerk Wheatley reported to the Secretary of State under Section 12(1) to the effect that the appellant had a character flaw which produced unwarranted outbursts from the Bench but that they could not find him unfit for office. On 27 June 1980 the same Senior Judges reported to the Secretary of State under the above sub-section that although the appellant's judicial conduct was open to legitimate criticism in certain respects they had decided with some hesitation that they could not advise that he was unfit for office. However they pointed out that constant justifiable complaints could not be tolerated in perpetuity and stated that they had given the appellant certain advice as to his future conduct. On 27 June 1991 the Secretary of State requested Lord President Hope and Lord Justice Clerk Ross to carry out an investigation in terms of Section 12(1). They examined 18 out of 20 cases in which the appellant's conduct had been called in question and concluded that an underlying defect in character which had continued despite prior warnings severely prejudiced the appellant's judicial functions whereby he was unfit for office by reason of inability.
The appellant then presented to the Court of Session a petition for judicial review of the Order of 1992 on a number of grounds of which only two are now relevant, namely: (1) That the Senior Judges had misinterpreted the word inability in Section 12(1), and (2) that they had conducted their administrative inquiry with procedural impropriety and not according to the rules of natural justice.
By interlocutor of 22 November 1994 the Lord Ordinary (Cullen) dismissed the petition holding (inter alia) that "inability" fell to be construed in its wider sense as including a want of ability. By interlocutor of 20 March 1996 an Extra Division of the Court of Session refused the appellant's motion for review of the Lord Ordinary's Interlocutor, holding (inter alia) that there was no ground for giving the word "inability" the narrow meaning contended for by the appellant. The issue in this appeal has been agreed by the parties in the agreed statement of facts and issues to be:
"restricted to the meaning of 'inability" as it is used in Section 12 of the 1971 Act, and in particular whether, as the appellant contends, it is restricted to unfitness through illness."
The appellant argued for the above narrow meaning of inability not only as a matter of simple construction but also by reference to the adverse consequences to judicial independence which a wider meaning would produce. It is interesting to trace the legislative history of the circumstances in which Sheriffs might be removed from office. In this connection I shall throughout use the modern terms of Sheriff and Sheriff Principal to describe the holders of the corresponding offices before the passing of the Act of 1971. Under the Heritable Jurisdictions (Scotland) Act 1746 Sheriffs held office during the pleasure of the Sheriff Principal and demitted office on his death. The Sheriff Courts (Scotland) Act 1838 provided that Sheriffs should continue in office after the death of their appointing Sheriff Principal and should be eligible to receive an annuity provided that they had completed specified periods of service of which the minimum was 10 years and were "from old Age or permanent Infirmity disabled from the due Exercise of [their] Office." Section 5 of the Sheriff Courts (Scotland) Act 1877 provided that no Sheriff should be removed except by a Secretary of State "for inability or misbehaviour" upon a report of the Senior Judges. This was the first time that the word "inability" had been used in relevant Scottish legislation although the words "Inability or Misbehaviour" were used in section 18 of the Small Debts Act 1846 in relation to the removal by the Lord Chancellor of a County Court Judge. Section 38 of the Sheriff Courts (Scotland) Act 1853 empowered the Treasury to grant an annuity to a Sheriff Principal in circumstances where an annuity could have been paid to a Sheriff under the Act of 1838. Section 1 of the Sheriffs Tenure of Office (Scotland) Act 1898 empowered the Secretary of State on a report by the Senior Judges to remove a Sheriff Principal who was "by reason of inability or misbehaviour unfit for his office," and section 2 empowered the Treasury to grant an annuity to a Sheriff Principal so removed before completing 10 years' service who was "by reason of inability unfit for his office." The latter section is curious in as much as a Sheriff Principal removed by reason of unfitness due to inability who had completed more than 10 years would not be eligible to receive an annuity. Why such a distinction was drawn is not obvious.
Section 13 of the Sheriff Courts (Scotland) Act 1907 made provision for the removal of both Sheriffs Principal and Sheriffs. In the case of the former the relevant words were "by reason of inability, neglect of duty, or misbehaviour unfit for his office," and in that of the latter "for inability or misbehaviour." Section 20 of the Act provided that Sheriffs Principal and Sheriffs should be eligible to receive an annuity provided thirdly that they had served for not less than ten years and were "from age or permanent infirmity disabled from the due exercise of [their] office," as certified by the Senior Judges. A fourth proviso repeated section 2 of the Act of 1898 in relation to Sheriffs Principal.
The appellant argued that the inclusion of the fourth proviso when read together with the third supported the narrow construction of inability inasmuch as it produced a comprehensive code for Sheriffs Principal who demitted or were removed from office due to physical or mental infirmity at any time after appointment. The concept of a comprehensive code necessarily involves the proposition that sections 38 of the Act of 1853 and 2 of the Act of 1898 when read together also produced a similar result. If the wider construction prevailed an anomalous result would be reached inasmuch as Sheriffs Principal removed from office because of unfitness due to reasons other than permanent physical or mental infirmity would be eligible for an annuity if the unfitness supervened within 10 years in office whereas those who within that time became permanently disabled physically or mentally would be...
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