Chapter 7
Removal from office
7.1 This section deals with the detailed provisions for removing from office a judge of the Court of Session and the Chairman of the Scottish Land Court. 26 A power to remove these judicial office holders, and general provisions as to how this should be done, are contained in section 95 of the Scotland Act 1998. 27 In 1999 the Westminster Parliament passed a statutory instrument 28 regulating the appointment of a tribunal to advise the First Minister on whether such a judicial office holder is unfit for office by reason of inability, neglect of duty, or misbehaviour. We propose that these transitional provisions should be replaced by primary legislation of the Scottish Parliament.
7.2 Any procedure to remove a judge must be framed in such a way as to ensure the independence of the judiciary is not compromised. Legislation of the Scottish Parliament must be compatible with the European Convention on Human Rights. The following proposals respect these requirements.
Tribunal
7.3 Provision will be made for the Lord President or, exceptionally, the Lord Justice Clerk, to request the First Minister to constitute a tribunal to investigate and report on whether a judge or Chairman is unfit for office by reason of inability, neglect of duty or misbehaviour. The First Minister will be obliged to constitute a tribunal when asked to do so by the Lord President. The First Minister will also have power to constitute a tribunal in such circumstances as he or she thinks fit, although the First Minister will be required to consult the Lord President before doing so. Where the Lord President is unavailable, or is himself or herself the person whose fitness is in question, the First Minister will be required to consult the Lord Justice Clerk.
7.4 The tribunal will comprise four members appointed by the First Minister with the agreement of the Lord President. Two will be members of the judiciary; one will be an advocate or solicitor of ten years standing; and one a person who is not, and never has been, an advocate or a solicitor. The chair will be the senior judge, qualified in accordance with section 95(9)(b) of the Scotland Act 1998. 29 One of the judicial members will be of the same level of seniority as the judge whose fitness is to be considered by the tribunal. The Chair of the tribunal will have a casting vote.
7.5 We welcome views on whether there is a need to set out the procedure which the tribunal should follow. That the tribunal must carry out its task in a way that is compatible with human rights jurisprudence is beyond doubt. On one view therefore there may be advantage in conferring on the tribunal a discretion to determine the appropriate procedure to follow in the particular circumstances of each case. On the other hand, it may be desirable in a matter of such importance as the potential removal of a judge, that the procedures to be followed should be set out in statute, or in regulations made under broad statutory authority. Furthermore, providing the tribunal with statutory authority to invoke certain procedural mechanisms to assist with the efficient and effective conduct of its inquiry may also be desirable. Regulations seem to us to be more appropriate than prescribing procedure in primary statute.
7.6 We would propose therefore to confer statutory authority on the Lord President to make regulations to govern the conduct of proceedings by the tribunal. Regulations would deal with matters including:
(a) how a judge should be advised of the issue of fitness to be investigated
(b) how he or she should answer
(c) how, and by whom, the matter would be investigated
(d) the time limits for the various stages of the tribunal process, and how these might be extended
(e) the form of report that would be prepared for Ministers
(f) what records would be made.
7.7 Provision would also be made regulating the summoning of witnesses and the recovery of documents, and for the payment of such fees and expenses to members of the tribunal, and to any investigator appointed, as Ministers may determine.
Question 44 Do you agree that the procedures to be followed by the tribunal should be set out in regulations made by the Lord President under a general authority in primary statute?
Question 45 If so, what provisions regulating the procedure to be followed by a tribunal to examine fitness for office, should be prescribed?
Suspension from Office during investigation
7.8 We propose to make provision for the suspension of a judge or Chairman pending the outcome of the tribunal's investigation. There are considerations about when suspension would be justified and by whom suspension should be ordered. We propose that when the Lord President requests the First Minister to establish a tribunal, the Lord President should have power to suspend the judge or Chairman from office pending the outcome of the inquiry. When the First Minister constitutes a tribunal at his or her own hand, he or she would not have power to suspend the judge or Chairman without the agreement of the Lord President, or where that office was vacant, the Lord Justice Clerk.
7.9 The power to suspend will be available only in limited circumstances. The basis for removal of a judge from office is unfitness owing to inability, neglect of duty or misbehaviour. Suspension pending determination of unfitness by a tribunal established for that purpose would be appropriate therefore only in circumstances where the judge had already undergone a process of determination, by an independent and impartial tribunal, that had established facts that, in the view of the Lord President or First Minister as the case may be, pointed reasonably to unfitness. We propose therefore that the power to suspend should be available only when a judge has been convicted of a criminal offence.
7.10 A judge or Chairman suspended under this provision would remain suspended until the First Minister directed otherwise, which he would be required to do on receiving a report from the tribunal that the judge was not unfit for office. Suspension from office would not affect payment to the judge or Chairman of his or her salary.
Question 46 Do you agree with the proposed arrangements for suspending the judicial office holder while an investigation into fitness is being conducted?
Standardising the arrangements for investigation into fitness for office
7.11 At present there are separate arrangements for investigating alleged unfitness for the office of sheriff principal and sheriff, 30 and a separate procedure again for investigating part-time sheriffs. 31 Allegations of unfitness of a sheriff principal or sheriff are investigated jointly by the Lord President and the Lord Justice Clerk, while those against a part-time sheriff are examined by a three person tribunal. These arrangements are inconsistent with those we are now proposing for a judge of the Court of Session. We consider the four person tribunal to be preferable and we propose therefore to take the opportunity to bring a common approach to the investigation of questions of fitness. We will make the necessary amendments to apply the four person tribunal to all judges. In the case of a tribunal into fitness of a part-time sheriff we would propose that the tribunal be chaired either by a judge of the Court of Session or a sheriff principal.
Question 47 Do you agree that the arrangements for investigating questions of fitness for office of sheriff principal, sheriff and part-time sheriff should be changed to a four person tribunal, with membership fixed on the same basis as that proposed for the tribunal to investigate fitness for office of judge of the Court of Session, except in the case of a part-time sheriff where the judicial chair will be either a judge of the Court of Session or a sheriff principal?
Question 48 If you do not agree that this would be the correct approach, what arrangements would you wish to see provided for investigating questions of fitness for office of sheriff principal, sheriff and part-time sheriff?