Stewart v Secretary of State for Scotland

For the purposes of removing a sheriff who is unfit for office, “inability” is not confined to physical or mental infirmity. It bears its ordinary, wider meaning and includes a lack of capacity to perform the judicial function arising from a defect of character or behaviour.

The statutory threshold remains demanding. Mere inefficiency or incompetence is unlikely by itself to constitute inability. The sheriff must be incapable of performing the proper function of a judge. Judicial independence is protected because removal depends upon a prior investigation and finding of unfitness by Scotland’s two most senior judges.

The appellant was removed from office as a sheriff by the Sheriff (Removal from Office) Order 1992 after the Lord President and Lord Justice Clerk reported under section 12(1) of the Sheriff Courts (Scotland) Act 1971 that an enduring defect of character severely prejudiced his judicial functions. He sought judicial review of the order.

The Lord Ordinary dismissed the petition. The Extra Division refused the appellant’s motion for review: Stewart v Secretary of State for Scotland 1996 S.L.T. 1203. The agreed issue before the House was whether “inability” in section 12 was confined to unfitness caused by illness.

1. The appeal was dismissed unanimously. Lord Jauncey of Tullichettle delivered the leading speech. Lord Lloyd of Berwick, Lord Steyn and Lord Saville of Newdigate agreed with his reasons. Lord Hutton agreed and added observations supporting the same construction.

2. Per Lord Jauncey, section 12 of the Sheriff Courts (Scotland) Act 1971 is directed to the proper administration of justice and the public interest in a fit judiciary. The Senior Judges must report either that the sheriff is fit or that the sheriff is unfit for one of the three specified reasons. There is no intermediate category. “Inability” must therefore be sufficiently wide to encompass a defect of character or behaviour which leaves a person incapable of performing judicial functions, although it does not amount to mental illness.

3. The legislative history did not support restricting inability to physical or mental infirmity. Earlier pensions legislation distinguished age or bodily or mental infirmity from inability warranting removal. Lord Hutton considered it significant that the Sheriffs' Pensions (Scotland) Act 1961 used express language when referring to incapacity caused by infirmity of mind or body.

4. “Inability” consequently bears its ordinary meaning of being unable, lacking ability or lacking capacity. Lord Jauncey declined to formulate an exhaustive definition. Mere inefficiency or incompetence, without more, is very unlikely to satisfy the statutory standard. The essential question is whether the sheriff is truly capable of performing the proper function of a judge at all. The conduct identified in the Senior Judges’ report amply justified their finding of inability.

5. The wider construction did not imperil judicial independence. Per Lord Jauncey and Lord Hutton, removal is possible only after the Lord President and Lord Justice Clerk have investigated and reported that the sheriff is unfit. Those judicial office-holders provide the safeguard against improper executive interference. The United Nations principles relied upon were recommendatory, post-dated the statute and did not support restricting incapacity to illness.

6. Lord Jauncey also found no reason to depart from the Extra Division’s conclusion that the investigation involved no unfairness or failure of natural justice.

1. House of Lords: Dismissed the appeal unanimously and affirmed the wider construction of “inability” adopted below.
2. Extra Division of the Court of Session: By interlocutor dated 20 March 1996, refused the appellant’s motion for review and held that “inability” was not confined to illness: Stewart v Secretary of State for Scotland 1996 S.L.T. 1203.
3. Outer House of the Court of Session: By interlocutor dated 22 November 1994, the Lord Ordinary, Lord Cullen, dismissed the judicial review petition and held that “inability” included a want of ability.