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Essay: Interpreting Inability: Examining the Meaning of Section 12 (1) of the Sheriff Courts (Scotland) Act 1971

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  • Published: 1 April 2019*
  • Last Modified: 23 July 2024
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The first ground was that he believed the senior judges had wrongly interpreted the meaning of the word “inability” found in section 12 (1) of the Sheriff Courts (Scotland) Act 1971. The appellant thought the meaning of “inability” was to be restricted to the narrow interpretation allowing the reasons behind unfitness for duty to be limited to physical or mental infirmity as oppose to the wider interpretation of including any form of incapability to perform the role of a judge. He believed that parliament never intended for “inability” to be widely interpreted as section 12 (1) of the 1971 act was intended to be read in relation to the historic legislative provisions for the removal of sheriffs from office in particular the Heritable Jurisdictions (Scotland) Act 1746 in which as Lord Jauncey said “sheriffs held office during the pleasure of the sheriff principal and demitted office on his death”, hence why the appellant believes this suggests that a wide interpretation was not intended. He also believed the narrow interpretation would avoid adverse consequences to judicial independence and sheriff’s ability to freely decide cases meaning it would avoid sheriffs being unfairly removed from office based on decisions they have made involving cases. The appellant thought that section 12 (1) should be construed having regard to Protocol 18 to the United Nations Basic Principles on the Independence of the Judiciary. In addition, he argued that a narrower interpretation of “inability” would avoid an anomaly in the Sheriff Courts (Scotland) Act 1907, that being if inability were to be given a wide interpretation would have allowed sheriffs principle with personality defects like the appellant with less than 10 years’ service to be paid an annuity whereas sheriffs principle with greater than ten years’ service could not be. Lastly, the Shorter Oxford English Dictionary refers to the use of the word ‘inability’ prior to 1834 as meaning bodily infirmity. The appellant says that inability in section 12 (1) of the 1971 act should be given the same meaning.

The second ground was that the senior judges in the words of Lord Jauncey “had conducted their administrative inquiry with procedural impropriety and not according to the rules of natural justice.

2.

Lord Jauncey commented on the anomaly that the appellant had mentioned. The anomaly being that unlike a sheriff principal having served for less than ten years, a sheriff principal who has been removed from office for being unfit for service due to inability having served for longer than ten years would not be paid an annuity. Lord Jauncey said “Why such a distinction was drawn is not obvious.”

He also thinks that although the addition of the fourth proviso to section 20 of the Sheriff Courts (Scotland) Act 1907 may produce an anomaly, he still does not believe it supports having a narrow construction of the word “inability” in section 12 (1) of the Sheriff Courts (Scotland) Act 1971.

Due to age and infirmity in the acts of 1838 and 1907 being treated as causing disablement and possibly meriting the payment of an annuity yet inability in the acts of 1877, 1898 and 1907 is treated as justifying removable from office, Lord Jauncey thought it would be surprising if inability were to be merely construed as another way of saying physical or mental infirmity. He thought that if inability were intended to be construed in this way then reference to “disability” would have been far more appropriate than “inability”. Furthermore, the appellant argued that the definition of inability in the Shorter Oxford English Dictionary supported a narrow interpretation of the word, Lord Jauncey argued that the current definition of the word in said dictionary was obsolete and he found that the appellants reference to definitions in two French dictionaries did not support his argument for a narrow interpretation of “inability”.

Lord Jauncey says that the purpose of section 12 of the 1971 act is for the proper administration of justice rather than for the benefit of individuals, and it is in the public’s interest for sheriffs to be fit for office and this should be borne in mind when the section is being construed. Lord Jauncey also says that in his view, section 12 is intended to cover all cases where a sheriff does not retire voluntarily but is unfit for office. Section 12 (1) specifies that the senior judges must either find sheriffs unfit for office by the reasons specified in the section or fit for office meaning there is no middle ground. He believes the reasons specified for unfitness must be wide because it would be absurd if the senior judges had to report a sheriff as fit for duty despite thinking that due to some personality or behavioural issue not amounting to mental illness he was not.

Lord Jauncey responded to the appellants argument that section 12 (1) of the 1971 act should be construed having regard to Protocol 18 to the United Nations Basic Principles on the Independence of the Judiciary by saying that there were three reasons why it should not be. These reasons were that section 12 (1) preceded the protocol, the protocol was only a suggestion and not law in the United Kingdom and it does not in any event support the appellants argument as no recommendation for “incapacity” to be interpreted as physical or mental illness only was made. He also added that the wider interpretation of “inability” poses no threat to the independence of the judiciary as the decision of whether a sheriff is unfit for duty or not rests entirely with the senior judges and they stand between the sheriff and any undue interference from the executive.

Finally, Lord Jauncey said that in terms of the allegation that the senior judges had conducted an unfair investigation, he agreed with the conclusion of the judges of the Extra Division that the investigation had no unfairness of natural justice.

3.

Lord Hutton used earlier cases in his judgement to support a broad interpretation of “inability”. He referred to two English cases which considered ss 18 and 24 of the Small Debts Act 1846. The issue in the R v Owen  case was the insolvency of the clerk of the court, the Attorney General found that “inability” arose if there was personal constraint and Lord Campbell CJ said removal would have been possible if the office holder “had been prevented from doing the duties of his office”. In the case Ex p Ramshay , a county court judge was removed from office for inability and misbehaviour, and found to lack the self-command needed to properly perform his duties as a judge however the judgement made no suggestion that this lack of self-command would not constitute an “inability” to carry out his duties as a judge. Lord Hutton used these cases to demonstrate why he believes “inability” in s 12 (1) of the 1971 act should be given its normal meaning of “being unable” or “lack of capacity”.

Lord Hutton’s treatment of the cases is in line with the Scottish doctrine of precedent as he seems to treat them only as persuasive because they were not binding on him. The two cases are English cases and so not binding on the current Scottish case at hand. They are also not binding because the cases were heard in lower courts, they could be considered to be old decisions, and the cases focused on different issues rather than directly dealing with the interpretation of the word “inability”.

4.

Both Lord Jauncey and Lord Hutton relied on the literal rule when they used the extrinsic aid of a dictionary and found the definition of “inability” in the Shorter Oxford English Dictionary. They both say that the word should be given its ordinary meaning and that the narrow interpretation of the word put forward by the appellant does not accord with the current definition of “inability” that is “The condition of being unable; want of ability, physical, mental, or moral; lack of power, capacity, or means.” Lord Jauncey refers to historic legislation with a modern perspective specifically the Heritable Jurisdictions (Scotland) Act 1746, Small Debts Act 1846 and the Sheriff Courts (Scotland) Act 1877. He interprets the meaning of the word “inability” in the context of different statutes to determine the meaning of the word in the act of 1971. Lord Jauncey also relied on the purposive approach when he says that section 12 of the 1971 act should be interpreted in the light of parliament’s intentions and its purpose for the section. He also relied on the purposive approach when he suggested that parliament’s intentions would not have been for “inability” to be construed as just physical or mental infirmity since reference to disability instead would have been more appropriate. Lord Hutton relied on the purposive approach when he referred to more recent legislation, that being Section 2 of the Sheriffs’ Pensions (Scotland) Act 1961. Lord Hutton claimed that parliaments intention for “inability” in section 12 of the 1971 act must not have been to restrict it to physical or mental infirmity, since in the act of 1961 when parliament referred to inability from ill health, it expressly described “inability” as being “by reason of infirmity of mind or body”.

5.

The legal issue that arose in the case was what meaning was to be given to the word “inability” in section 12 (1) of the Sheriff Courts (Scotland) Act 1971. The appellant argued that “inability” should be interpreted restricting the word to physical or mental infirmity whereas the respondent argued that it should be interpreted broadly meaning “inability” includes any reasons rendering a person unfit to perform the duties of a sheriff.

I have drafted an amended version of the existing section 12 of the Sheriff Courts (Scotland) Act 1971 to include the broader interpretation of “inability” giving a more appropriate meaning of the word.

The (amended) Section 12 of the Sheriff Courts (Scotland) Act 1971 provides:

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, as defined in subsection (3), 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.

(3) For the purpose of section 12 (1) inability includes;

(a) by reason of infirmity of mind or body

(b) and any other reason rendering the sheriff unable to perform his duties as a sheriff.

6.

I am the advocate acting on behalf of Angie McSonorous and I would first submit that Angie met the requirements of Section 2 of the University Lecturers (Scotland) Act 1985.

I will firstly establish that Angie was “required to resign” and that she was within ten years of the official retirement age. Angie was warned about her behaviour a number of times and she sought medical help, she was then diagnosed as having a mild personality defect known as “perfectio demens” and she was required to resign. The fact that Angie sought medical help and that the defect was mild and probably easily manageable shows that she would not voluntarily resign from her role when she was taking steps to control her condition. Rather, it shows that she wanted to continue working but she was required to resign. In addition, Angie at the age of 57 is eight years short of the normal retirement age for university lecturers and therefore within ten years of the official retirement age required in the 1985 act.

I will secondly establish that Angie’s reason for resignation was not due to an inability to perform her required academic duties. I would submit that the meaning of “inability” in section 2 of the University Lecturers (Scotland) Act 1985 should be the narrow interpretation of the word which includes only physical or mental infirmity and does not include Angie’s personality defect.

In my view, the decision in Blacklove v the University of Strathdeen with regard to the interpretation of “inability” was wrong and the court in which Angie’s case was heard is not bound by the interpretation of “inability” in Stewart v Secretary of State for Scotland. I would submit that it is not binding because Angie’s case is likely being heard in the outer house and their decisions are not horizontally binding meaning they do not need to be followed. Despite the Stewart case being a highly persuasive case, it is not binding in terms of interpretation as it involves different statutory provisions.

I would also argue that the broader interpretation of “inability” in the case of Stewart should not be binding on Angie’s case because the ordinary meaning of the word would produce an anomaly in Angie’s case. The anomaly being that a person dismissed for misconduct that was avoidable would receive a pension, whereas a person dismissed for a personality defect like Angie which was not their fault would not be eligible for a pension. This anomaly is a reason why the ordinary meaning of “inability” should not be used and instead the narrow meaning of only physical or mental infirmity should be used. For all the foregoing reasons, the narrow interpretation of “inability” is appropriate for the 1985 act and Angie’s reason for resignation is not included in this.

Angie was required to resign for a mild personality defect that was beyond her control and that she was trying her best to manage and I believe I have shown that Angie meets the requirements of Section 2 of the University Lecturers (Scotland) Act 1985. Accordingly, I would lastly submit that Angie McSonorous has been unlawfully denied an early pension.

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