Stewart v Secretary of State for Scotland 1998 Appellant's Argument - Essay Example

Appellant’s Argument Appellant’s argument focused on his assertion that the Senior Judges misinterpreted the word “inability” and that the conduct of the administrative inquiry against him was marred by procedural impropriety. The appellant pleaded for the narrower interpretation of the word “inability” to which he assert only pertains to “unfitness through illness”. He further asserts that the narrower interpretation of “inability” pertaining to physical and mental infirmity is more apropos in its application to resolve the controversy in his case. Appellant contends that the narrower interpretation of the word “inability” is “supported by earlier legislation inasmuch as it produced a comprehensive code for sheriffs principal who demitted or were removed from office because of physical or mental infirmity”. He further asserts that if the wider interpretation is to accrue “an anomalous result would be reached”. He clarified that the word “inability” is not intended to mean “unfit for duty due to behavioural infirmity” as used in his case but to describe the natural consequence of not being able to perform a sheriff’s duty due to health reasons or disability. Appellant likewise assert that the Lord President and the Lord Justice Clerk erred and committed procedural lapses in their investigation. He asserts that he was not properly informed of the actual charges against him and that the charge was “inability” rather “than misbehaviour” or “defect in character”. He further contends that he was not given the opportunity to face and respond to the allegation of the Lord President and the Lord Justice Clerk’s sources. Lord Jauncey’s Judgement Lord Jauncey’s response to the assertion of the appellant with regards to the narrow interpretation of the word “inability” was anchored on the legislative history of how sheriffs are removed from office as articulated in the Heritable Jurisdictions (Scotland) Act 1746 a law that was in effect before Sheriff Courts (Scotland) Act 1971 became into being. Under this law, the sheriffs held office at the pleasure of their appointing officer and only upon his death will sheriffs be demitted. Sheriff Courts (Scotland) Act 1838 repealed this provision in particular by letting the sheriffs continue even after the death of the appointing officer. Under the then new law, the Sheriff has been made eligible to receive annuity provided that they completed a minimum of ten years. In the same length the same law also provided for instances where the sheriff were removed from office due to old age or permanent infirmity that disabled them to exercise the demands of their office. In Section 5 of the Sheriff Courts (Scotland) Act 1877 the word “inability” was first mentioned. The provision of this law provided “that no sheriff should be removed except by a Secretary of State for inability or misbehaviour upon a report of the Senior Judges”. Consequently, “Inability or Misbehaviour” was 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 annuity to a sheriff principal in circumstances where annuity could have been paid to a sheriff under the Act of 1838. Then in 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 sheriff principal who was by reason of ‘inability or misbehaviour unfit for his office’. The evolution of the inclusion of the word “inability” progressed to Section 13 of the Sheriff Courts (Scotland) Act 1907 that made provisions for the removal of sheriffs principal ‘by reasons of inability, neglect of duty, or misbehaviour unfit for his office’ while that of sheriff ‘for inability or misbehaviour’. Following the logic of the appellant with regards to the accruing meaning and application of the word “inability” in relation to annuity and tenure, the wider interpretation of the word “inability” the appellant contends will find solace. Lord Jauncey however, settled the argument concerning the application of the word “inability” in the context of removal and not of the application of annuity and tenure of sheriffs to do otherwise would only confuse and not clarify and create anomaly where there is none. Concerning the contention of the appellant, that judicial independence is in jeopardy if the ruling affirms his removal due to its departure from the principle espoused by the United Nations General Assembly in 1985. The principle asserts that Judges shall only be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. Lord Jauncey contends firstly that the principle does not form part of the law of the United Kingdom. Secondly, the principle preceded the law by fourteen years and finally the ruling is in accordance with the principle since it was held that the Sheriff was removed due to his inability to discharge his duties. With regards to the allegation of the appellant of the unfairness in the conduct of the investigation by the senior judges Lord Jauncey ruled that there was no reason to vacate the conclusion of the Extra Division since it should be noted that the proceedings including the investigation have been exhaustively discussed and argued at the lower level. Lord Hutton’s Judgement Lord Hutton’s ruling mentioned R. v. Owen1 in relation to Section 18 and 24 of the Small Debts Act 1846 to reiterate the meaning of “Inability” or “Misbehaviour” in removing county judges and a clerk of the court. Lord Hutton mentioned that in the case the Attorney General submitted that “inability” has ‘arose if there was actual personal restraint or the office holder had been prevented from doing the duties of his office’ in this case according to the Attorney General ‘there is good ground for the removal’. In defining “Inability” Lord Hutton, adopted the interpretation and definition that arose from previous cases to support his ruling. Lord Hutton further found support in Ex parte Ramshay2, where the Chancellor of the Duchy of Lancaster exercised his power to remove a county court Judge for “inability and misbehaviour”. The report indicated that the county court Judge ‘had not the degree of self-command to enable him to properly perform the duties of the Judge of the County Court of Liverpool’. Lord Hutton reiterated that the judgement in the case delivered by Lord Campbell CJ, ‘considered that this lack of self-command did not constitute “inability” to perform the office of a judge’. Therefore, Lord Hutton accordingly considered that it is apropos to read the word ‘“inability” in sec 12(1) of the Sheriff Courts (Scotland) Act 1971 as having its normal meaning of “being unable” or “lack of capacity”’. Rules used in statutory interpretation Lord Jauncey and Lord Hutton articulated the historical precedents to resolve the implied impasse in the statutory construction of Section 12(1) of the Sheriff Courts (Scotland) Act 1971. Lords Jauncey and Hutton also relied on the plain meaning of each word used to discern the actual intent of the legislator in drafting the provision of the law. Lord Jauncey ruled that if the intent of the law is to interpret “inability” to mean unfit due to physical and mental infirmities then the proper term the legislator should have used is the word “disability”. Lord Jauncey noted that “disability”, was also used in another part of the provision as pertaining to actual “physical and mental infirmities”3 which suggest that textual interpretation of the statute was used. Lord Jauncey and Lord Hutton also favoured substantive interpretation. Lords Jauncey and Hutton upheld the jurisdiction and findings of the Lord President and Lord Justice Clerk in their findings and interpretation of “inability”4. The true intent of the law can be discerned through Textual and Substantive interpretation both of which was described above. A third rule, which is called Deference, is when a third party that is judicially recognized as the authority to describe the meaning of a word is sought. In this case, Lord Jauncey and Lord Hutton relied on the interpretation of the Oxford English Dictionary since it is considered as an authority in providing the general and common interpretation of the word. Draft Statutory Provision Resolving the issues presented in the case This proposed provision seeks to amend section 12 (1) and (2) of the Sheriff Courts (Scotland) Act 1971 in full. (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 of 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 including their supporting evidence to support their allegation as contained in the report. (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, inform the sheriff concerned with regards to the findings of the investigation and the charges against the sheriff in writing. The information to be transmitted to the erring sheriff shall contain – (a) The charges the sheriff needs to answer in his defence in a clear and concise manner (b) The complete transcript and documentation of the investigation including its findings (3) The Secretary of State shall then give the sheriff the opportunity to answer the allegation and the result of the investigation in writing within fifteen calendar days from receipt thereof. (4) Upon receipt of the answer of the accused sheriff, and with sufficient and diligent notice to the sheriff concerned the Secretary of State shall then convene a formal hearing within fifteen days with the following person in mandatory attendance– (a) The Secretary of State - that has the power to render a verdict with regards to the result of the proceedings and to direct the conduct of the formal hearing in accordance with the law. (b) The accused sheriff and his solicitor (c) The Lord President of the Court in Session, the Lord Justice Clerk and their solicitor procured individually or by both jointly. (d) Clerk of court – to record the transcript of the proceedings (5) The conduct of the proceeding shall have the following format. (a) The Lord President of the Court shall read the allegations against the Sheriff. (b) The accused sheriff shall then read his answers in full (c) No controversies that are not included in the report shall be made part of the proceedings. (d) Common grounds and facts shall be agreed and accepted by all parties concerned and shall be noted by the stenographer. That would include the meaning and interpretation of terminologies. (e) Each party shall take turns arguing the merits of their respective positions exhaustively to ensure that each have been given ample opportunity to defend their rights (6) As deliberated in the meeting the Secretary of State shall make a ruling that could either be – (a) an order removing that sheriff principal or sheriff from office (b) an order reinstating the sheriff to his former position. (7) All decision of the Secretary of State shall be appealable to the appropriate court. Ms Angie MacSonorous v. University of Glasburgh The sole issue to be settled is the refusal of the University of Glasburgh to pay Ms MacSonorous her pension until she reaches the age of 65. The controversy that needs to be settled is whether the action of the University of Glasburgh is justified and is congruent with Section 2 of the University Lecturers (Scotland) Act 19855. To support the argument in favour of Ms MacSonorous the dispute with regards to whether or not she was dismissed because she was persuaded to retire or was she dismissed because of her inability to perform her academic duties will be settled in the succeeding paragraphs. Ms MacSonorous’ attention have been called with regards to her irrational outburst in class following this she was instructed to seek professional help where she was diagnosed as having a mild personality defect known as “perfect insanity” that could get worse as she advance in age. However, it should be noted that there was no formal proceeding that was involved that led to Ms MacSonorous dismissal or a request for her resignation as detailed in the relevant provisions of the Universities (Scotland) Acts 1858 to 19666. Formal proceedings are resorted to enable opposing parties to defend their cause in accordance with the letter of the law. For the case of Ms MacSonorous no formal proceedings took place and Ms MacSonorous was persuaded to retire to which she acquiesced in her own volition for fear of being formally dismissed later on. A review of Section 2 of the University Lecturers (Scotland) Act 1985 provides that “lecturer who is dismissed within ten years of the official retirement age is entitled to receive his or her university pension from the date of dismissal or resignation” certainly Ms MacSonorous early retirement eight years before her actual retirement is congruent with the requirements of this provision that qualifies her to receive her pension. It should be noted that Ms MacSonorous at the time of her early retirement is perfectly able to discharge her academic duties and responsibilities. Her assent to an early retirement should not be construed as an acceptance of an inability to perform her academic duty but it should be construed as keeping fate to her profession of teaching. In Stewart v Secretary of State for Scotland Lord Hutton emphasized the process in which the Sheriff was removed from office as complying with fealty to the requirements of due process and diligence7. Read More