Stewart v. Secretary of State For Scotland (Scotland)

The House of Lords considered the meaning of "inability" in section 12(1)(b) of the Sheriff Courts (Scotland) Act 1971, which permits removal of a sheriff who is "unfit for office by reason of inability, neglect of duty or misbehaviour". The court held that "inability" must be given its ordinary, wide meaning—including lack of capacity to perform judicial functions for reasons other than physical or mental infirmity—and is not limited to bodily or mental illness. The House rejected the appellant's argument that a narrow meaning was required to protect judicial independence, explaining that the investigatory and reporting role of the two Senior Judges, and parliamentary oversight, protect independence. The Lords affirmed the previous findings that the appellant's conduct amounted to inability within s.12(1)(b) and dismissed the appeal.

The appellant, a sheriff substitute appointed in 1962, was removed from office by an order made under the Sheriff (Removal from Office) Order 1992 following a report by the Lord President and the Lord Justice Clerk under section 12(1) of the Sheriff Courts (Scotland) Act 1971 that he was "unfit for office by reason of inability". The appellant sought judicial review in the Court of Session on grounds including (1) that "inability" should be construed narrowly to mean physical or mental infirmity and (2) that the investigation had been procedurally unfair. The Lord Ordinary dismissed the petition (interlocutor 22 November 1994) and the Extra Division refused review (interlocutor 20 March 1996). The appeal to the House of Lords was therefore an appellate challenge on the construction of s.12(1).

The issues before the House were:

• Whether "inability" in section 12(1)(b) is confined to incapacity caused by bodily or mental infirmity; and
• Whether the investigatory process breached rules of natural justice.

The House analysed the statutory history of removal and pension provisions, previous authorities and dictionary meanings. It contrasted provisions (for example, the Sheriffs' Pensions (Scotland) Act 1961) where Parliament expressly used language referring to incapacity "by reason of infirmity of mind or body" when it intended ill-health to be determinative. The Lords concluded that section 12 is concerned with public interest in maintaining fitness for office and that "inability" must be read broadly to cover inability to perform judicial functions whether arising from defect of character, personality or other causes, not solely bodily or mental illness. The House also held there was no unfairness in the Senior Judges' investigation. The appeal was dismissed.

Nature of the application: judicial review of an order removing a sheriff from office under s.12(1) of the Sheriff Courts (Scotland) Act 1971; relief sought was annulment of the removal order.

Reasoning (concise): the ordinary meaning of "inability" includes lack of capacity; statutory context and history do not support a restricted meaning; safeguards for judicial independence are provided by the requirement that the two Senior Judges investigate and report and by parliamentary remedies; the appellant's conduct met the statutory standard of inability to perform judicial functions.

Appeal dismissed. The House held that "inability" in section 12(1)(b) of the Sheriff Courts (Scotland) Act 1971 bears its ordinary, wide meaning (including lack of capacity to perform judicial functions for reasons other than physical or mental infirmity). The Senior Judges were entitled to conclude that the appellant was unfit by reason of inability, and there was no procedural unfairness in their investigation. The safeguards built into s.12 protect judicial independence.

Petition for judicial review heard in the Court of Session: Lord Ordinary (Cullen) dismissed petition (interlocutor of 22 November 1994). Extra Division refused the appellant's motion for review (interlocutor of 20 March 1996). Appeal to the House of Lords, judgment [1998] UKHL 3.