Stewart v. Secretary of State For Scotland (Scotland) [1998] UKHL 3

House of Lords
Between
StewartAppellantSecretary of State For Scotland (Scotland)Respondent
Before
Lord Lloyd of BerwickLord Jauncey of TullichettleLord SteynLord HuttonLord Saville of NewdigateDate 22 January 1998
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.

LORD JAUNCEY OF TULLICHETTLE

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: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: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 ineligible. My Lords, going back to the Act of 1898, section 1 specifies two grounds of unfitness warranting removal, one passive and one active, namely inability and misbehaviour, whereas section 2 is concerned solely with inability . It is comprehensible that the power to grant an annuity should only be exercisable where the unfitness is passive, and apart from the curious cut-off period of 10 years in section 2 no anomaly is created by these two sections. Such anomaly as there may be arises because of the re-enactment of section 2, which operated only in the context of removal, as the fourth proviso in section 20 of the Act of 1907, whose primary purpose was to provide annuities for those who demitted office voluntarily. However, if as the appellant contends it were intended simply to be complementary to the preceding proviso the result could have been achieved much more simply by deleting any reference to periods of service in the third proviso. Furthermore this contention necessarily equiparates disability justifying the granting of an annuity with inability justifying removal, a result that it is difficult to conceive that Parliament could have intended. More important is the fact that the fourth proviso applied not to the many full-time Sheriffs throughout Scotland but only to Sheriffs Principal of whom in 1898 and 1907 it is probable that only the two full-time holders of the office, Lothians and Lanarkshire, would have received retirement annuities. The addition of the fourth proviso to section 20 is not a particularly happy piece of drafting but although it might produce an anomaly on the construction favoured by the respondent I do not consider that it supports the argument for a narrow construction of inability in section 12(1) of the Act of 1971.Section 1(2) of the Sheriffs' Pensions (Scotland) Act 1961 repealed section 20 of the Act of 1907 and section 2( b ) empowered the Secretary of State, if satisfied by means of a medical certificate that a Sheriff or Sheriff Principal who has served for five years or more is, "by reason of infirmity of mind or body, incapable of discharging the duties of his office," to grant him a pension. No provision comparable to the fourth proviso in section 20 has been re-enacted.It is, in my view, significant that in the Acts of 1838 and 1907 age and infirmity are treated as causing disablement which may merit the award of an annuity whereas inability in the Acts of 1877, 1898 and 1907 is treated as rendering the individual unfit for office and hence removable. It would be somewhat surprising if in these circumstances inability were to be construed as merely another way of expressing physical or mental infirmity. Indeed as the respondent submitted if inability had been intended simply to reflect such conditions of infirmity reference to disability rather than unfitness by reason of inability would have been far more appropriate. The narrow construction does not accord with the following current definition in the Shorter Oxford English Dictionary:
"The condition of being unable; want of ability, physical, mental, or moral; lack of power, capacity, or means."
The dictionary refers to its use prior to 1834 as meaning "bodily infirmity." The appellant argued that the now obsolete meaning was appropriate for section 12 and also referred to definitions in two French dictionaries but I did not find that these supported his argument nor were they of assistance in construing section 12(1) of the Act of 1971.Section 12 is concerned with the removal of a Sheriff Principal or Sheriff who is unfit for office. This is a provision which is directed to the proper administration of justice, not to the benefit of individual holders of the office. It is in the public interest that members of the Shrievalty should be fit for the office which they perform and this objective must be borne in mind when the section is being construed. Section 2( b ) of the Act of 1961 is directed at cases of infirmity of mind or body and envisages that persons so affected will retire on pension. Section 12 deals with other cases of unfitness and is, in my view, intended to cover all those cases where a Sheriff does not retire voluntarily but is unfit for performance of his duty. That this is so is emphasised by the duties imposed upon the Senior Judges by section 12(1). They are required not simply to report if they find that a Sheriff is unfit for the reasons specified in paragraph ( b ) but, if they do not so find, they are required by paragraph ( a ) to report that he is fit. There is no half way house, either a Sheriff is unfit by reason of the three matters specified or he is fit. This means that the reasons specified for unfitness must be very wide. It would be absurd if the Senior Judges were required to report that a Sheriff was fit for office although they were entirely satisfied that due to some defect in character or quirk of behaviour not amounting to mental illness he was wholly unfitted to perform judicial functions. Such, however, would be the result of the appellant's argument. If, however, inability is given the broader meaning set out in the Shorter Oxford English Dictionary no such problem arises.The appellant sought to reinforce his argument on construction by submitting that judges were appointed ad vitam (now restricted to specified ages) aut culpam and emphasising the importance of the judiciary being independent of interference from the executive or elsewhere. He referred to the United Nations Basic Principles on the Independence of the Judiciary, endorsed by the United Nations General Assembly in 1985 and to protocol 18 thereof, which is in the following terms:
"Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties."
Section 12(1) should, it was argued, be construed having regard to that protocol. There are three answers to this proposition namely: (1) Section 12(1) preceded the protocol by about 14 years, (2) the protocol is merely recommendatory and certainly not part of the law of the United Kingdom, and (3) it does not in any event support the appellant's argument since there is no suggestion that "incapacity" is intended to be restricted to physical or mental illness. It follows that protocol 18 cannot be looked at as an aid to the construction of section 12(1). There is, however, one more important answer to any suggestion that to construe inability in the sense contended for by the respondent would encroach upon the independence of the Shrievalty. The decision as to whether a Sheriff is or is not unfit rests entirely with the two Senior Judges. It is only if they report that a Sheriff is unfit that the Secretary of State can make an order for removal which itself can always be annulled by resolution of either House of Parliament. The two Senior Judges, who might be considered to be the persons best qualified to assess a Sheriff's fitness and to recognise the importance of judicial independence, are thus the bulwark standing between the Sheriff and any undue interference by the executive.My Lords,for all the foregoing reasons I am satisfied that the conduct of the appellant referred to by the Senior Judges in their report amply justified their conclusion that the appellant was unfit for office by reason of inability within the meaning of section 12(1)( b ). I do not find it necessary, nor would it be useful, to attempt an exhaustive definition of the meaning of " inability ." Suffice to say that mere lack of efficiency or competence per se is very unlikely to measure up to inability . As Lord Coulsfield said in the Inner House ( Stewart v. Secretary of State for Scotland 1996 S.L.T. 1203 at 1213E):
". . . what has to be shown is that he is not really capable of performing the proper function of a judge at all."
Finally, although the agreed statement of facts and issues states that the issue before the House was restricted to the meaning of inability the appellant briefly argued that it was nevertheless pars judicis to take note, as a preliminary matter, of the allegations of unfairness in the conduct of the investigation by the Senior Judges. This matter was carefully dealt with by the judges of the Extra Division and I see no reason to depart from their conclusion that there had been no unfairness or failure of natural justice.My Lords,for the foregoing reasons I would dismiss the appeal.

LORD STEYN

My Lords,For the reasons contained in the speeches of Lord Jauncey of Tullichettle and Lord Hutton, which I have read in draft, I too would dismiss the appeal.

LORD HUTTON

My Lords,I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Jauncey of Tullichettle. I am in agreement with it and wish only to make some brief observations on the appeal.The primary meanings given to the word "inability" by the Shorter Oxford English Dictionary include "being unable" and "lack of . . . capacity." Therefore if the word "inability" in section 12(1) of the Sheriff Courts (Scotland) Act 1971 is given its ordinary meaning, I consider that it includes "being unable" to carry out the judicial function or "lacking capacity" to carry out the judicial function, and that the meaning is not confined to bodily or mental infirmity as the appellant, Mr. Stewart, submits.In support of his submission that the word should be given the narrower meaning, the appellant relied on the historical background to section 12 of the Act of 1971 and, in particular, on section 29 of the Heritable Jurisdictions (Scotland) Act 1746 which stated that a Sheriff Depute, after being in office for seven years, should hold the office "ad Vitam aut Culpam," and that a Sheriff Depute should only be deprived of his office for "gross Misbehaviour or Neglect of Duty" after a summary trial before the Court of Session. He submitted that the subsequent statutory provisions, including section 12(1) of the Act of 1971, must be read against this background, and that Parliament did not intend that a sheriff could be removed from office other than for bodily or mental infirmity or neglect of duty or misbehaviour rendering him unfit for office, so that lesser faults in a sheriff's judicial conduct flowing from a defect in character or personality could not constitute "inability" making him "unfit for office."The appellant further submitted that the wider meaning of "inability" given to section 12(1) of the Act of 1971 by the Outer House and the Inner House gave rise to an anomaly in the Sheriff Courts (Scotland) Act 1907 which could not have been intended by Parliament. Section 13 of the Act of 1907 provided for the removal from office of a Sheriff who was unfit for his office "by reason of inability, neglect of duty, or misbehaviour." Section 20 of the Act of 1907 provided for the payment of an annuity to a Sheriff who had served in the office for not less than ten years and who was "from age or permanent infirmity disabled from the due exercise of his office." Section 20 further provided that if a Sheriff was removed under section 13 of that Act before he had completed ten years' service on the ground that he was "by reason of inability unfit for his office," it should be lawful for the Treasury to grant him an annuity of such amount and for such period "as they shall consider just in all the circumstances."Therefore the appellant submitted that if, under the Act of 1907, a Sheriff could be removed from office because he was unfit for office by reason of "inability" arising from a personality defect, the Treasury would be entitled to grant him an annuity provided he had not completed ten years' service, but if he had completed ten years' service the Treasury would not be so entitled. The appellant contended that this was anomalous, but that the anomaly did not arise if in section 20 "inability" was construed to mean bodily or mental infirmity.Section 20 of the Act of 1907 was not happily drafted and did appear to be capable of giving rise to an anomaly, but notwithstanding this apparent anomaly I consider that the appellant's submission should be rejected because of the wording employed by Parliament in more recent legislation.Section 2 of the Sheriffs' Pensions (Scotland) Act 1961 provided:In my opinion this section points to the conclusion that when Parliament used the word "inability" in section 12(1) of the Act of 1971 it was not intending to restrict it to incapacity by reason of bodily or mental infirmity, because when, in the Act of 1961, Parliament intended to refer to incapacity caused by ill-health it expressly described the incapacity as being "by reason of infirmity of mind or body."This conclusion also derives some support from two English cases which gave consideration to sections 18 and 24 of the Small Debts Act 1846 which provided that a County Court Judge and a Clerk of the Court could be removed from office for "Inability or Misbehaviour". Whilst in R. v. Owen (1850) 19 L.J.Q.B. 490 the point in the present case was not directly considered and the issue related to the insolvency of the Clerk of the Court, the Attorney-General submitted that "inability" arose if there was (inter alia) actual personal restraint, and Lord Campbell C.J. stated at page 492 that if (inter alia) the office holder "had been prevented from doing the duties of his office, then there might have been a good ground of removal." In Ex parte Ramshay (1852) 18 Q.B. 173 a County Court Judge was removed from office for inability and misbehaviour. It appears from the report that the Chancellor of the Duchy of Lancaster, who exercised the power to remove him, did so because he had been unable to resist the conclusion that the judge "had not the degree of self-command to enable him properly to perform the duties of the Judge of the County Court of Liverpool," and there was no suggestion in the judgment of the Court of Queen's Bench, delivered by Lord Campbell C.J., that the court considered that this lack of self-command did not constitute "inability" to perform the office of a judge. Accordingly I consider that it is right to read the word "inability" in section 12(1) of the Act of 1971 as having its normal meaning of "being unable" or "lack of capacity" and not to give it the narrower meaning contended for by the appellant.The appellant also submitted that a power to remove a Sheriff from office by reason of inability to perform his judicial functions arising from a defect of character or personality endangered the independence of the judiciary and would give rise to the risk that a judge might be removed from office because there was disapproval of the way in which he decided the cases coming before him. I do not accept that submission and am of opinion that the independence of the judiciary is fully protected by the requirement in section 12 that the two most senior judges in Scotland, the Lord President and the Lord Justice Clerk, must first undertake an investigation into the fitness for office of the Sheriff and then report that he is unfit for office before the Secretary of State can remove the Sheriff from office. In discharging their task under section 12 the Lord President and the Lord Justice Clerk will have ever present to their minds the importance of preserving and protecting the independence of the judiciary, and there is therefore no danger of that independence being impaired. Accordingly I would dismiss the appeal.

LORD SAVILLE OF NEWDIGATE

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend Lord Jauncey of Tullichettle. For the reasons contained in that speech I too would dismiss this appeal.