CHAPTER 7 REMOVAL FROM OFFICE
What was proposed?
7.1 A power to remove a judge of the Court of Session, and the Chairman of the Scottish Land Court, was introduced by section 95 of the Scotland Act 1998. That section left it to the Scottish Parliament to make provision for a tribunal to investigate fitness for office. A temporary order was made at the time of devolution to deal with any situation that might arise before the Scottish Parliament legislated. 7 In Chapter 7 of the consultation paper we set out our proposals for that provision. We also proposed that the arrangements in the Sheriff Courts (Scotland) Act 1971 for investigating questions of fitness of a sheriff and a part-time sheriff should be amended to bring them into line with the tribunal proposed for Court of Session judges. We asked for views on when it would be appropriate to suspend a judge or sheriff while an investigation was taking place.
What views were expressed in the consultation?
7.2 Our proposals for membership of the tribunal were broadly supported although there was some opposition to the presence of non-judicial members. There was support for the proposal that power should be given to the Lord President to make rules of procedure for the tribunal. There was a strong view that our proposals for suspension did not go far enough; a more general power to suspend was preferred. The Sheriffs' Association were strongly opposed to any change to the current arrangements for investigating the fitness of a sheriff set out in section 12 of the Sheriff Courts (Scotland) Act 1971. They considered that any such change would undermine the security of tenure of the office of sheriff and consequently the independence of that office. However, this concern was not shared by all respondents, and there was a view that the procedure in section 12 was in need of reform.
How do we intend to proceed?
7.3 We have developed the proposals into draft legislative provisions. These form Part 3 of the draft Bill.
7.4 We have taken account of the responses to the consultation and broadened the provisions for suspension of judicial office holders. Both the Lord President and the First Minister are given the power to suspend. The Lord President is given an unqualified power, and we would anticipate that should any judge or sheriff be suspended pending an investigation this would be done by the Lord President. The First Minister may suspend only on the written recommendation of a tribunal.
7.5 We are not persuaded that membership of the tribunal should be restricted to members of the judiciary. Lay membership of tribunals established to consider the fitness of professional persons is not uncommon. The public expect a certain standard of conduct from the judiciary, and we believe having a lay member on a tribunal would give the public greater confidence in the judicial system. Membership of the tribunal is to be agreed by the Lord President, or in certain circumstances the Lord Justice Clerk.
7.6 We have given careful attention to the opposition of the Sheriffs' Association to the amendment of section 12 of the 1971 Act. We understand their concerns, but we do not consider that our proposals undermine the guarantee of independence that presently rests in the need for a joint investigation by the two most senior judges before a sheriff may be removed from office. We believe that what is important is ensuring that removal can only follow a finding of unfitness on the grounds of inability, neglect of duty or misbehaviour; that the process is free from Executive influence, and follows the basic principles of natural justice, respecting the rights of the individual members of the judiciary. The procedure we are proposing respects all these considerations. A tribunal would be chaired by a judge who would have a casting vote, if that were ever necessary; membership would be agreed by the Lord President; and the Lord President would have power to regulate the procedure to be followed by tribunals. If a finding of unfitness were made, removal would require a statutory instrument which would be subject to annulment by the Scottish Parliament.