Clancy v Caird [2000] ScotCS 96 (4 April 2000)

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[1] The pursuer seeks damages from the defender for an alleged breach of contract in respect of the sale of a nursing home by the defender to the pursuer. The action went to proof before T.G. Coutts, Q.C., sitting as a temporary judge, and after six days of proof was taken to avizandum. While at avizandum, the decision in the case of Starrs and Chalmers v. P.F. Linlithgow 2000 JC 208 was published and this case was put out by order, along with two other cases at avizandum, in order that parties might consider their position in the light of the decision in Starrs. In the other two cases the parties were content that Mr. Coutts should issue his decision, but the pursuer in this case objected on the ground that the hearing before a temporary judge was incompetent and was in breach of Article 6 of the European Convention of Human Rights. The case comes before this court on a report by the temporary judge who took the view that it was inappropriate for him to consider the issues raised.

[2] The matter was brought before this court as a devolution issue and the first question to be considered is whether, under the terms of the legislation, a devolution issue truly arises. A great deal of time was taken up in argument as to whether a failure to act in accordance with Convention rights by the Scottish Ministers fell within the provisions of the Scotland Act 1998, or whether it is only acts in breach of Convention rights which could be challenged as a devolution issue. What is abundantly clear is that when the Human Rights Act 1998 comes into force in its own right, instead of being applied by implication under section 129(2) of the Scotland Act, an act will be deemed to include a failure to act. Prima facie it would seem strange when importing provision of the Human Rights Act to exclude by a procedural device, not clearly spelled out, the effect of failing to act in accordance with Convention rights. Apart from anything else there are many situations which, on one view, could be categorised as an act but on another view could be categorised as a failure to act. It is the duty of the Scottish Ministers to provide the necessary judicial resources to enable Convention rights to be secured. As part of these judicial resources the executive continues to provide temporary judges. Is continued provision an act, or is it a failure to act by reason of failing to withdraw that particular resource? Where serious constitutional issues have to be decided, the ability to bring such issues before the court should not depend on semantic quibbles of this nature, and I would require the clearest possible provision in the statutory framework to compel me to take such an unattractive approach. For the reasons set out in detail by Lord Penrose I am satisfied that the contention of the defender and the Lord Advocate must fail and that a devolution issue has competently been raised.

[3] The principal issue raised in this case arises out of Article 6.1 of the Convention which provides

The meaning and significance of the phrase "independent and impartial" has been discussed in detail in a number of cases in Europe and in Canada and most recently in Scotland in Starrs. We were referred to a substantial number of these cases, some of which were analysed in considerable detail. It is the duty of this court, when considering the interpretation of the Convention, to have regard to the decisions in the European Court of Human Rights ("E.C.H.R.") and the Commission. These decisions, however, are not to be treated in the same way as precedents in our own law. In so far as principles can be extracted from these decisions, those are the principles which will have to be applied. It is, however, clear from E.C.H.R. decisions that the decision in any particular case will depend upon the particular facts and circumstances of that case considered in the context of the legal system of the State concerned. While the general principles to be applied will remain constant, the actual decision in each particular case may vary, depending upon the way in which the principles are applied to the facts of that particular case. It is therefore of little assistance to consider the detail of cases involving military tribunals in Turkey or Belgium, probationary judges in Germany, Housing and Tenancy Courts in Sweden, and so on. I do not therefore propose to go through the detail of all the cases to which we were referred but would prefer to extract what appear to me to be the relevant principles and then apply those principles to the facts and circumstances of the present case. This appears to me to be consistent with the approach of the E.C.H.R. Such an approach is somewhat different to the Canadian approach, which is exemplified in three cases in particular, namely Valente v. The Queen 1985 24 D.L.R. 161, Attorney General of Quebec v. Lippé 1991 2 S.C.R. 114 and Reference Re. Section 6(2) of the Territorial Court Act (N.W.T.) 1997 152 D.L.R. 132. The Canadian approach is to treat independence and impartiality as separate elements, then split each of them into two separate components, and then carry out a step-by-step analysis in relation to each component. The end result may be the same, but in my opinion this analytical approach is somewhat unnecessary when considering the terms of Article 6 and the way in which the principles embodied in Article 6 should be applied to a particular case. As far as independence is concerned this covers method of appointment, security of tenure and freedom from any influence from outside sources which might affect a judge's decision in any particular case. As far as impartiality is concerned this relates again to extraneous influences which might be thought to affect a judge's decision. If, on a subjective test, it can be shown that a judge acted with some form of personal bias, whether due, for example, to relationship, financial interest or strong personal conviction, then he can not be regarded as impartial. There is, however, also an objective test which requires that judges should offer guarantees sufficient to exclude any legitimate doubts in this respect. As pointed out in Starrs there must be not only actual independence and impartiality but also the appearance of independence and impartiality.

[4] I now turn to consider the circumstances of this particular case. Until 1985 all judges sitting in the Court of Session or High Court of Justiciary were permanent appointments who held their office ad vitam aut culpam subject only to a compulsory retirement age. Under section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 it was provided that the Lord President may, with the consent of the Scottish Ministers, appoint a person who has held office as a judge of the Court of Session or as a Lord of Appeal in Ordinary to act as a judge of the Court of Session or High Court during such period or on such occasions as the Lord President may think fit. The major innovation came under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Section 35(3) of which provides:

The paragraphs as quoted are as amended by S.I. 1999 No. 820, which related to the transfer of functions to the Scottish Ministers. We were informed that since 1991 a total of 13 appointments have been made, all prior to the coming into force of the Scotland Act. Eight of the appointees were sheriffs at the time of their appointment. This case is not concerned with the appointment of temporary judges who are sheriffs and who therefore have security of tenure under an existing judicial office. One of the persons appointed was the Chairman of the Scottish Land Court who, again, already had security of tenure under a judicial office. The remaining four were Queen's counsel, two of whom subsequently became permanent judges of the Court of Session. The remaining two Queen's counsel were first appointed on 5 April 1991 and their appointments were for a period of three years. Both were subsequently re-appointed and their current appointments subsist until 4 April 2000. One of these is T.G. Coutts, Q.C., who is the temporary judge with which this particular case is concerned. His current commission is in the following terms:

We were also informed that the Lord President has issued guidelines as to the use to be made of temporary judges who are practising members of the bar. These guidelines restrict the use of temporary judges so that they do not sit in civil jury trials, cases of particular public interest, judicial reviews, actions on the commercial roll, motions for interim interdict, in an appellate capacity, or in any criminal matters. It is further directed that no temporary judge is to be employed for business without the prior agreement of the Lord President. As far as the present case is concerned we are informed that there was a shortage of available judges to conduct the business of the court for the week commencing 27 September 1999 and Mr. Coutts was asked whether he was available and prepared to sit. He agreed to do so and thereafter, after consultation with the Lord President, the Keeper of the Rolls allocated the proof in the present case to Mr. Coutts.

[5] Counsel for the pursuer submitted that having regard to the terms of Schedule 4 of the 1990 Act, a temporary judge could not be regarded as independent and impartial. He emphasised that there was no suggestion in this case of any personal bias or personal lack of impartiality on the part of Mr. Coutts, nor indeed was he able to suggest any ground upon which the pursuer could conceivably be prejudiced by the fact that the case was heard by a temporary rather than a permanent judge. His contention was that a temporary judge could not be regarded by an impartial observer as being independent and impartial because of a lack of security of tenure, the fact that he was beholden to the Executive, both for the continuation of his commission during its currency and the possibility of re-appointment, that he has no financial security, and that his continuation in practice at the bar might present conflicts of interest. I shall deal with these matters in turn.

[6] The most basic requirement for independence is security of tenure such as to provide a guarantee against any interference with the judge's function from any outside source and in particular from the Executive. The obvious and ideal way to ensure such security is for every judicial appointment to be permanent and full-time with tenure ad vitam aut culpam. At common law the rule in Scotland was that a judicial office holder must have tenure ad vitam aut culpam. In Mackay & Esslemont v. Lord Advocate 1937 SC 860 it was held that members of the Land Court were entitled to security ad vitam aut culpam, and an attempt by the Executive to impose an age limit on such members was rejected. Age limits are now of course statutory, as opposed to being imposed by the Executive, and such limits are not regarded as affecting independence. Does this mean that any appointment has to be for life (or until retirement age) to satisfy the requirement for independence? Clearly, in my view, it does not. In the U.N. Basic Principles on the Independence of the Judiciary it is provided in paragraph 12 that "judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists". In Zand v. Austria 1978 15 D.R. 70 it was said that "The irremoveability of judges during their term of office, whether it be for a limited period of time or for life time, is a necessary corollary of their independence". In the Canadian case of Valente it was said that

Indeed judges in the E.C.H.R. itself are appointed for a fixed term of between three and nine years. Accordingly, it appears to me clear that there can be no objection per se to the appointment of judges for a fixed term, provided that during that period there is security of tenure which guarantees against interference by the Executive in a discretionary or arbitrary manner. It may also be of significance that temporary judges are not full-time appointments for a fixed period. They only sit on a part-time basis as required, and that requirement is laid down not by the Executive but by the Lord President. It would appear from the authorities that there could be no objection to the appointment of a temporary judge to hear a particular case providing, of course, that he has security of tenure during that limited period. I do not, therefore, see any reason in principle why there should be any objection to the grant of a commission to a temporary judge in order to allow him to sit as and when required by the Lord President. The objection which found favour in Starrs was that the commission of temporary sheriffs was for a short period of one year, but more importantly, in terms of section 11(4) of the Sheriff Court Act 1971, it was specifically provided that the commission could be recalled at any time by the Executive and there was accordingly no security of tenure even for the limited period of the commission. The question, therefore, in my view, becomes whether there is security of tenure for a temporary judge appointed under the provisions of the 1990 Act.

[7] Counsel for the pursuer argued that there was no such security. So far from there being anything in the Schedule to provide security of tenure, paragraph 7 provides that a temporary judge shall not be treated as a judge of the Court of Session for the purposes of any rule of law relating to inter alia tenure of office. Accordingly, there is nothing to prevent a temporary judge's commission being recalled at any time. A temporary judge is put in the same position as any other servant of the Crown who holds his office at pleasure. In my opinion this argument cannot succeed. Paragraph 7 does not remove all security of tenure from a temporary judge but merely indicates that the specific conditions of office of a permanent full-time judge in the Court of Session do not apply to a temporary part-time judge. That, however, does not detract in any way from the conditions which would apply to any other holder of a judicial office as opposed to an ordinary servant of the Crown. As was made clear in Mackay & Esslemont, any holder of a judicial office is entitled to security of tenure and entitled to enforce that security against the Executive, and this would apply to a temporary judge. In any event, if there was any ambiguity in the terms of the 1990 Act, the Act must be read, if possible, to be compatible with Convention rights, and as the Convention, as interpreted, requires security of tenure for a judge to be independent such security must be implied. That being so I am satisfied that for the period of the commission a temporary judge has security of tenure.

[8] A subsidiary question arises on an argument that even if the commission cannot be recalled, a temporary judge may be "sidelined" and accordingly effectively be deprived of his office. Once appointed, however, the periods during which a temporary judge's services will be used is not in the hands of the Executive but is under the control of the Lord President. Counsel for the pursuer founded on an observation by Lamer C.J. in Lippé that

I do not, however, regard these observations as indicating that any judge is to be wholly free from administrative directions from the court. It would of course be improper for any one member of the judiciary to attempt to influence another member of the judiciary as to the latter's decision-making process in any particular case, and it appears to me that the observations to which I have referred merely confirm that view.

[9] That leaves the question of whether the absence of a guarantee of re-appointment affects the independence of a temporary judge. If there was something which could be regarded as a right to be re-appointed this might be a valid objection. However, the whole concept of temporary judges is that they should be temporary. If, at the expiry of the period of appointment, there still remains a need for temporary resources it may well be that the temporary judge will be re-appointed for a further period, but this is not something which he is entitled to expect. I am unable to see how any reasonable observer would conclude that there might be the possibility of a temporary judge being influenced to come to a particular decision in a particular case because of a possible concern about whether or not he might at some time in the future be re-appointed. Furthermore, in this context, it should be borne in mind that the E.C.H.R. has emphasised on a number of occasions that regard must be had to the particular circumstances of the case in hand. While it might be arguable that a temporary judge would feel under some pressure if called upon to decide a litigation involving the Secretary of State, the Scottish Ministers or the Lord Advocate, it is important to note that the Lord President has laid down guidelines to the effect that temporary judges will not sit in cases which are likely to involve such parties. I appreciate that the Lord President's guidelines do not have any statutory force, but they do form part of the framework within which the 1990 Act is operated and has been operated since the inception of temporary judges. It is also true that in Starrs the court was concerned about the matter of re-appointment. However, the position of temporary sheriffs differs from the position of temporary judges. The appointment of temporary sheriffs was for a period of one year only. When inviting applications to become temporary sheriffs it was made clear that the appointment would be regarded as to some extent a probationary period for the possible appointment of full-time sheriffs. Accordingly, re-appointment at the end of the one year period could be regarded as something which a temporary sheriff might feel entitled to expect. As he was in effect on trial, it would certainly be arguable that an impartial observer would take the view that a temporary sheriff might be influenced, consciously or unconsciously, in his consideration of cases either involving the Executive or of public interest by consideration of the fact that the nature of his decision might endanger his prospects of re-appointment. It does not appear to me that the same considerations apply to the very limited number of practising members of the bar who are given commissions entitling them to sit as temporary judges in the Court of Session.

[10] The next issue raised by the pursuer is the fact that the members of the bar who are appointed as temporary judges remain in practice. The pursuer's argument is that continuance in practice present potential conflicts of interest in relation to two aspects. In the first place a party to the case before a temporary judge may be represented by solicitors on whom the temporary judge depends for work or from whom he may hope for work. In the second place the temporary judge is exposed to the risk of determining an issue on which he may have given advice or may seek to argue in the course of his practice. This is a matter of objective impartiality, it not being suggested that any of these considerations applied to the particular temporary judge in the context of the present case. Counsel for the pursuer founded on what was said by Lord Reed in Starrs. It was there pointed out, following De Cubber v. Belgium 1984 7 E.H.R.R. 236, that a distinction has to be drawn between a subjective test and an objective test, the latter being aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt as to his impartiality. Lord Reed said that it was not in dispute that the only guarantees that a temporary sheriff will avoid a conflict of interest are his judicial oath and the rule of practice that a solicitor would not be allocated to a court in which he or his firm practice. In reality, therefore, the avoidance of conflicts of interest depended on the judicial oath and on the integrity of the individual temporary sheriff. His Lordship said that he did not consider that the judicial oath is a sufficient guarantee to exclude all legitimate doubt, even though it is an important protection. He founded on what was said by Proulz J.A. in the Court of Appeal in Lippé

Lord Reed agreed with those observations and agreed with the view taken in the Canadian cases that reliance on the judicial oath and unenforceable traditions is an inadequate safeguard. Counsel for the defender and for the Lord Advocate, however, submitted that in this context there was an additional factor which was not considered by Lord Reed, namely the common law rules of declinature. While it was accepted that reliance on "tradition" would not suffice, the common law rules of declinature constituted a rule of law and not mere tradition or practice. A useful guide to this issue can be found in Locabail (U.K.) Limited Court of Appeal 17 November 1999 where what was said was:

If, however, a judge finds himself in a position where he considers that there is a possible conflict of interest it is his duty to disclose that possible conflict to the parties in the case and to propone declinature. Obviously this depends on the integrity of the particular judge in making the necessary disclosure. Where, however, there is no reason to doubt the personal integrity of the particular judge, in my view there is no reason not to place reliance on that integrity to make the necessary disclosure. This is not a problem which is confined to temporary judges. Permanent judges also may find themselves in a position where they feel it necessary to make disclosure of some factor which might be regarded as being a possible influence on their decision, but it has never been suggested that reliance on the personal integrity of permanent judges in some way incapacitates the permanent judge from being regarded as impartial. In Lippé, where the court took the view that the occupation of practising law gives rise to a reasonable apprehension of bias in a substantial number of cases and is therefore, per se, incompatible with the functions of a judge, nevertheless, the court was satisfied that there were in position sufficient guarantees to safeguard against any risk of bias. In particular, reliance was placed on the Code of Ethics for Municipal Judges of Quebec. This code provided inter alia that the judge should avoid any conflict of interest and refrain from placing himself in a position where he cannot faithfully carry out his functions, and that the judge should be, and be seen to be, impartial and objective. There was also a code of civil procedure which provided that a judge may be recused if he is related to a party, is himself involved in an action involving a question similar to the one in dispute, if he has given advice on the matter in dispute, if he is directly interested in an action pending before a court in which any of the parties will be called to sit as a judge and if he has any interest in favouring any of the parties. Because of these safeguards, which were backed by a procedure to hear complaints which could eventually result in the judge's removal, the court was satisfied that there was no real risk of bias. What is to be noted, however, is that, in the code of ethics in particular, the safeguards are of a fairly general nature and, furthermore, depend upon disclosure by the judge of any factors which might cause him to act in what would be regarded as an unethical manner. Similarly, in relation to the code of practice it would be for the judge to disclose that he was in a position where he ought to be recused. It appears to me that the provisions of the code of ethics and the code of practice differ little from the rules at common law in Scotland relating to declinature. In my opinion, therefore, the judicial oath, taken together with the rules relating to declinature which form an integral part of the common law, provide an adequate safeguard against what is, at best, a somewhat hypothetical and speculative risk.

[11] As far as remuneration is concerned, the pursuer argued that paragraph 7(b) of Schedule 4 provided that temporary judges should not be treated as judges of the Court of Session for the purpose of remuneration, allowances or pensions. Under paragraph 10 the Scottish Ministers may pay to a temporary judge such remuneration as they may determine. There is no provision for sick pay, holiday pay or pensions. There is thus a lack of financial security, which might introduce pressure to seek a permanent appointment. In my opinion this argument is misconceived. Whatever might be the position if there was a difference in remuneration between a Court of Session permanent judge and a Court of Session temporary judge who was appointed for a fixed period to act full-time, that consideration does not apply here. A temporary judge is in fact remunerated on a daily rate based on a fraction of the normal salary of a judge of the Court of Session. If in fact a temporary judge has security of tenure and is duly remunerated for the occasions on which he sits I am unable to see how the nature of his remuneration can have any bearing on the way in which he is likely to decide any particular case. It might as well be argued that any judge should be regarded as lacking in impartiality because there is a risk that he might decide a case in favour of the Executive because he has in mind the prospect of promotion to a higher and more remunerative position. Such an argument would be fanciful in the extreme.

[12] For these reasons I am satisfied that the challenge to the independence and impartiality of temporary judges has not been made out. I am not satisfied that any impartial observer would take the view that temporary judges on an objective test could be regarded as being at risk of being biased in some way, or that if there was any such risk that it was not covered by adequate safeguards.

[13] So far, the considerations which I have been discussing relate to the position of temporary judges in general and in principle. However, as I have already pointed out, the E.C.H.R. make it clear that the relevant considerations have to be applied within the context of the facts of a particular case. As far as the facts of this particular case are concerned the pursuer and the defender are private individuals who have no connection of any kind with the Executive. The dispute between them arises out of a contract entered into between them, which is alleged to have been breached by reason of certain representations made by the defender which, it is said, were not true. This is therefore an entirely private dispute between two private parties. It is in that context that one has to consider the applicability of Article 6.1 in relation to independence and impartiality. Even if temporary judges could be regarded as lacking in independence or impartiality in certain special respects, nevertheless that does not mean that they can be regarded as being lacking in independence and impartiality for the purposes of every case. The case of McGonnell v. The United Kingdom involved the position of the Bailiff of Guernsey who is the Head of Administration of the island, the President of the States of Deliberation, which is the island legislature, and also the President of the Royal Court. The particular case involved an appeal against the refusal of the Island Development Corporation, which was a branch of the Executive, to grant planning permission. The bailiff presided over the Royal Court which refused the appeal. Both the Commission and the E.C.H.R. took the view that because of the bailiff's dual capacity it could not be said that the Royal Court was an independent and impartial tribunal. At the commission stage there was a concurring opinion by Mr. N. Bratza in the following terms:

The decision of the E.C.H.R. (8 February 2000) confirmed the opinion of the commission and made no comment either approving or disapproving the concurring opinion of Mr. Bratza. However, this opinion does reinforce the view generally taken by the E.C.H.R. that decisions of this nature have to be taken in the context of the particular circumstances of the case. In the circumstances of the present case there is no conceivable reason why Mr. Coutts should decide one way or the other in this dispute based on any consideration of security of tenure or of the possibility of re-appointment or of any financial considerations or of anything connected with his practice at the bar. Accordingly, an impartial observer informed as to the method by which the system works, even if of a somewhat paranoid nature, would find difficulty in finding any possible breach of the requirement of impartiality and independence in the present case. For these reasons I am satisfied that the proper course is to remit this case back to the temporary judge in order that he may issue his decision.

[14] One final matter relates to the contention by the defender and the Lord Advocate that in the circumstances the pursuer waived his right to object to Mr. Coutts as a temporary judge. No objection was taken when the case was allocated to Mr. Coutts, and the parties went right through the proof and the hearing without any objection. It was only when the case was put out by order that the pursuer elected to take objection to Mr. Coutts. In these circumstances it was submitted that the pursuer had passed from his right to object to the temporary judge. The cases of Bulut v. Austria 1996 R.J.D. 347 and Oberschlick v. Austria 1991 Series A No. 204 clearly establish that in appropriate circumstances a party may waive a Convention right. Counsel for the pursuer argued that waiver has not been established in this case. The temporary judge was duly appointed in accordance with the terms of the 1990 Act. Prima facie, therefore, he was entitled to sit. The pursuer was not aware of the precise terms of the temporary judge's appointment nor the conditions of his appointment. Before any question of waiver could arise the pursuer would have to be in possession of the full facts. As it was, the pursuer was unaware of the full facts until the case was put out by order, and until the decision in Starrs the pursuer would not have reason to expect that a successful challenge could be made to a statutory provision. In my opinion the pursuer's explanation for not raising the matter in limine would normally be insufficient. Even prior to the decision in Starrs it was well-known to the legal profession that the introduction of the Convention to the law of Scotland might well cause problems in relation to the appointment of temporary sheriffs and temporary judges. Although the decision in Starrs was not given until 11 November 1999, the Bills of Suspension were heard before the High Court on 21 to 24 September 1999. It was on 24 September 1999 that the parties in the present case were informed that the proof had been allocated to Mr. Coutts to be heard, commencing on 28 September 1999. It would therefore be difficult for the pursuer successfully to say that he was wholly unaware of the possibility of a challenge to Mr. Coutts on 28 September. Furthermore, although the precise details of the temporary judge's commission may not have been known to the pursuer, he was, nevertheless, well aware of the general nature of the appointment of temporary judges from the terms of the 1990 Act, and although the case before this court is dressed up as a devolution issue in order to bring it before the court, in effect the pursuer is challenging the terms of the 1990 Act as being contrary to Convention rights. If, therefore, the case had proceeded to a decision by the temporary judge I would have no difficulty in holding that the pursuer had passed from his right to object to the temporary judge on the ground of lack of independence and impartiality. The difficulty that I have, however, is that the case did not proceed to a decision but was put out by order by the court. The purpose of putting the case out by order was to enable the parties to consider their position in the light of the decision in Starrs which had, by then, been issued. It may appear somewhat unfair when the court has put out the case by order in order that parties may consider their position, then to say to the party who had chosen to take the point that he was barred from taking the point because he should have taken it at an earlier stage. However, the fact remains that the appropriate time to take objection was before the proof started, and it would be unfair to the defender to deprive him of his right to found on the fact that the pursuer had already passed from his right to object. Despite the fact that the case was put out by order by the court, I therefore consider that the defende

[15] On the whole matter I would move your Lordships to remit the case back to the temporary judge to issue his decision.

[1] This is an action in which the pursuer sues the defender for payment of two sums, one of £135,000 and the second of £35,000. The action arises out of a contract entered into by missive letters on 12 November 1996 by which the pursuer purchased a residential home, known as Deveron House Residential Home, from the defender. The pursuer alleges that the defender told him, in the course of certain discussions before the contract was made, that there were 17 residents in the home paying fees of about £234 per week. The pursuer also alleges that the defender supplied him with a list of staff employed to work at the Home, with their wage rates and with accounts which contained figures for the costs of wages and salaries. The pursuer avers that, on the basis of the information supplied to him and to a valuer acting for him, he purchased the Home and the business for £385,000, but that, after he took over the Home, he discovered that the information provided for him with regard to permanent residents, staff wage rates and to wage costs was inaccurate and that the representations made by the defender or on his behalf were fraudulent. The pursuer maintains, separately, that the defender was in breach of a condition of the contract and of a warranty in regard to the application of the Transfer of Undertakings Regulations. The pursuer accordingly claims damages and in addition a sum representing additional interest which he had to incur by incurring increased borrowings, as a result of the defender's misrepresentations and breaches of contract.

[2] The action was raised at the end of 1997. The pleadings were adjusted and a proof before answer was allowed on 25 September 1998. A diet of proof was eventually arranged for the week commencing 27 September 1999. Because of a shortage of available judges, Mr. T.G. Coutts, Q.C., a temporary judge, was asked whether he was available and prepared to sit during the week commencing 27 September 1999 and he agreed to do so. After consulting the Lord President, the Keeper of the Rolls allocated the proof in this action to Mr. Coutts on Friday 24 September. The proof was scheduled to occupy more than one week. No objection was taken to the allocation of the case to Mr. Coutts nor was any objection taken at the commencement of the proof. The evidence was heard and concluded, submissions were made by counsel for the parties and Mr. Coutts made avizandum. There was a major issue as to the credibility of the parties. In addition, counsel for the defender contended that no evidence had been placed before the court upon which damages could be assessed, as a result of deficiencies in the proof.

[3] Before Mr. Coutts had completed his opinion, the decision in Starrs and Chalmers v. P.F. Linlithgow was issued, the opinions becoming available on 17 November 1999. It was thought that there were potential matters of concern relating to the utilisation of temporary judges arising from the opinions and accordingly it was thought appropriate to put out this case By Order, along with two other cases which Mr. Coutts had heard. In the other two cases, the parties indicated that they wished Mr. Coutts to continue with and dispose of the actions. In this case, however, counsel for the pursuer said that he wished to raise a devolution issue and that the pursuer's position was that a temporary judge did not constitute an independent and impartial tribunal for the purposes of Article 6.1 of the European Convention on Human Rights. Counsel for the pursuer also suggested that the issue should be referred to the Inner House and Mr. Coutts agreed to do so and reported the case accordingly. The fact that the case had been reported was intimated to the Lord Advocate, and we heard submissions from junior counsel for the Lord Advocate as well as from junior and senior counsel for the pursuer and the defender.

[5] The relevant Schedule is Schedule 4 which provides, by paragraph 5, that any person who is otherwise eligible for appointment as a judge of the Court of Session may be appointed as a temporary judge under section 35(3) of the Act for such period as the Secretary of State may determine but, subject to paragraph 9, no such appointment is to extend beyond the date on which the person reaches the age of 75. Under paragraph 6, a person appointed as a temporary judge is to be treated, while so acting, as a judge of the court and may perform any of the functions of a judge of the court. Paragraph 7 provides:

[6] By paragraph 8 a temporary judge of the Court of Session is to be a temporary Lord Commissioner of Justiciary: paragraph 9 enables a judge in certain circumstances to continue to deal with a case after the date of his retirement: paragraph 10 provides that the Secretary of State may pay a temporary judge such remuneration as he, with the consent of the Treasury, determines: and paragraph 11 deals with appointment as a sheriff or sheriff principal and with continuance in a business or professional occupation not inconsistent with acting as a judge. The Scotland Act substitutes the Scottish Ministers for the Secretary of State.

[7] The Act of 1990 contains no express term as to the period of office of temporary judges nor does it have any provision for removal of such judges from office. The first appointments, which included the appointment of Mr. Coutts, were made in 1991 and were for a period of three years. Since 1991, a total of 13 persons have been appointed as temporary judges, again including Mr. Coutts. Of these, eight have been serving sheriffs or sheriffs principal. Five of the persons appointed have later been appointed as permanent judges of the Court of Session and one has been appointed a sheriff principal, his appointment as a temporary judge ceasing at that time. In all the other cases, the appointments have been renewed from time to time. In most cases, the appointments and renewals have been for periods of three years but in two cases, for no particularly obvious reason, the appointments have been for varying periods. Mr. Coutts himself, was first appointed on 5 April 1991 and his appointment has been renewed for successive three-year periods, his current appointment lasting until 4 April 2000. The terms of his appointment, which are quoted in his report, are as follows:

[8] As is apparent from the terms of the appointment, the actual use of the services of a temporary judge is under the control and direction of the Lord President. Initially, there were quite extensive restrictions on the types of case in which temporary judges might be used, but those restrictions have been reduced with the passage of time. The report says:

[9] The restrictions which apply to members of the bar who are temporary judges differ to some extent from those applied in the case of sheriffs who are temporary judges. In practice, as is well-known, those sheriffs who have acted as temporary judges have sat predominantly as temporary Lords Commissioners of Justiciary, dealing with criminal trials. Some attempt was made to quantify the use made of temporary judges in the Court of Session. The figures quoted to us were not entirely clear, but the indication was that temporary judges may have accounted for something in the region of 10% of the sitting days in the Court of Session in recent months.

[10] As regards Mr. Coutts himself, it is only necessary to add that he is a senior counsel of high standing and long experience at the bar. He has also sat as chairman of a number of statutory tribunals.

[11] As I have mentioned, the pursuer sought to raise as a devolution issue the question whether the temporary judge constituted an impartial and independent tribunal for the purposes of Article 6 of the European Convention on Human Rights. Article 6 provides inter alia:

[12] The Article goes on to deal with publicity of proceedings, with the burden of proof in criminal causes and with the minimum rights of persons accused of criminal offences. The mechanisms by which questions arising under the Human Rights Convention can be raised as devolution issues are well enough known, having been considered now in a number of decisions, and it is not necessary to repeat them. In order to find a locus for raising the question of the application of Article 6 in the present case the pursuer must be able to relate his complaint in some way to an act, or possibly a failure to act, on the part of the Scottish Executive or a member of it. In consequence, the main issues which arise can be summarised as follows.

1. Whether there is any devolution issue, that is, whether there has been any act or omission on the part of the Executive which goes beyond their powers.

2. Whether the temporary judge is an independent and impartial tribunal within the meaning of Article 6.1. In order to deal with this question it is necessary first to determine what the terms of service of a temporary judge are and in particular whether his appointment can be terminated.

3. Whether the hearing of the pursuer's case before a temporary judge was contrary to his common law rights.

4. Whether the pursuer has waived any right to complain of the hearing of his case by the temporary judge.

[13] The first question is whether there is any devolution issue in this case. Such an issue can only arise where there is an act of the Scottish Executive, as defined in the legislation. There was extensive discussion of the question whether a failure on the part of the Executive to act could amount to an "act" for these purposes. I am happy to adopt Lord Penrose's explanation of that issue and its relevance, and I am inclined, as at present advised, to agree with his assessment of it. I prefer, however, to reserve my opinion on the point because, in my view, it is not necessary for the disposal of this case. It was submitted on behalf of the pursuer that by continuing to provide funds for the employment of temporary judges, and by that means continuing to provide the services of temporary judges, the Scottish Executive had "acted" and, in my view, that submission is correct. Accordingly, there is, I think, a devolution issue properly raised in this case.

[14] There is a preliminary question which may have a bearing on the status of a temporary judge, for the purposes of Article 6.1, during the currency of his commission, namely, whether that commission can be terminated at will by the Executive. The argument on this limited point falls within fairly short compass. On behalf of the pursuer, it was submitted that the effect of Schedule 4 to the 1990 Act was that temporary judges were appointed for such period as the Scottish Ministers (originally the Secretary of State) might determine and that all the provisions in regard to security of tenure which apply to permanent judges of the court were disapplied by the provisions of the Schedule; and further that the remuneration payable to temporary judges was such as might be determined by the Executive. It was therefore argued that, by implication, the appointment of a temporary judge, like that of any other Crown servant, was terminable at will. For the defenders and the Lord Advocate, it was submitted that, in contrast with the case of temporary sheriffs considered in Starrs and Chalmers v. P.F. Linlithgow, 2000 SLT 42 there was no express power to remove a temporary judge and that having regard to the decision in Mackay and Esslemont v. The Lord Advocate 1937 SC 860 the statute was not to be construed as enabling the executive to terminate the commission issued to a temporary judge during the currency of that commission. Counsel for the Lord Advocate observed that, according to his understanding, the Executive did not construe their powers as extending to the termination of an appointment.

[15] In my view, the argument for the defender and the Lord Advocate is to be preferred. Both constructions of the Schedule depend on implication, and the question is which implication should be preferred. It is true that paragraph 7 of Schedule 4 to the 1990 Act disapplies all rules of law relating to tenure of judges of the Court of Session and that there is no specific provision creating any other kind of tenure in favour of a temporary judge. It is also true that paragraph 10 provides that the Scottish Ministers may pay to a person appointed under section 35(3) such remuneration as they may determine. However, the decision in Mackay and Esslemont v. The Lord Advocate supra demonstrates that there is an underlying general rule that a judicial appointment is to be taken not to be terminable. I do not think it necessary to examine that case in detail since it is the principle and spirit of the decision rather than the particular circumstances of the case which seems to me to be important. In my view, the absence of an express power to terminate an appointment and the fact that the appointment is specifically made as a judicial appointment are enough to carry the implication that an appointment cannot be terminated during its currency. In addition, it seems to me that even if, as was suggested, there may be some infelicity in its wording, paragraph 6 of the Schedule is obviously designed to extend to a temporary judge the status and the immunities of a judge of the Court of Session in relation to his actings in that capacity. I would add that the provisions of paragraph 10 seem to me to be more directed towards empowering the Executive to expend funds rather than with the question of the appropriate remuneration for a temporary judge. Reference was also made to paragraph 11 and in particular to the provision that the appointment of a person to act as a temporary judge is without prejudice to his continuing with any business or professional occupation not inconsistent with his acting as a judge. That provision, however, seems to me to do no more than to apply to a temporary judge the rules which apply to a permanent judge, namely, that there are certain occupations which can be pursued or maintained consistently with holding office as a judge and many more which cannot. For the present purposes, I do not think it necessary to go into the details of what those occupations might be.

[16] In the course of the argument we were referred to a large number of decisions of the European Court of Human Rights and of the Commission and to a number of Canadian decisions which were regarded as of assistance by the judges in Starrs and Chalmers v. P.F. Linlithgow as well as to the decision in Starrs and Chalmers v. P.F. Linlithgow itself. It would, in my view, be tedious and unnecessary to try to rehearse all the arguments which were advanced by reference to these decisions, particularly as, as I shall try to explain, in my view, a good many of the decisions are of no direct assistance in the present question. The best approach, in my view, is to set out the general principles which can be found stated, often in precisely the same language, in several of the decisions of the E.C.H.R., to look at a relatively small number of decisions which may be of assistance on their particular facts, and then to see what assistance can be obtained from the Canadian authorities, before mentioning to the decision in Starrs and Chalmers v. P.F. Linlithgow.

[17] The general approach to Article 6.1 of the Convention is set out in, for example, Huschildt v. Denmark (1989) 12 EHRR 266 at paragraph 45 and following. The judgment states:

[18] That statement of principle makes it clear firstly, that, so far as actual impartiality is concerned, it is to be presumed that a judge is impartial unless evidence to the contrary is provided. In the present case there has been no suggestion of actual lack of impartiality or that any evidence of lack of impartiality might be produced: any such suggestion was expressly disclaimed. Secondly, it is clear that what matters is how the relevant provisions of the law are interpreted and applied in practice, not necessarily how they might theoretically be construed. Thirdly, the particular circumstances of the case require to be considered and the important question, in the end of the day, is the impact on the particular party or parties concerned in the case, having regard to all these circumstances.

[19] Further general statements of importance in regard to independence can be found in a number of decisions, of which Campbell and Fell v. United Kingdom (1984) 7 E.H.R.R. at 165 is an example. That case concerned a board of prison visitors. At paragraph 78, the court said:

[21] There is, in some of the cases, a suggestion that independence and impartiality may be distinguished in that the test of independence is primarily a question of independence from the executive whereas the test of impartiality relates more to independence from the parties and to absence of prejudice or bias. Nevertheless, it is, in my view, clear that independence and impartiality are closely related and may be difficult to distinguish. Pullar v. United Kingdom (1996) 22 EHRR 391 may be cited as an example of a case in which the two were very closely related, but the court preferred to consider the issue in the case from the point of view of impartiality. In any event, whether the standpoint of independence or that of impartiality is adopted regard must be had not only to the subjective aspect but to the objective viewpoint, that is to the possibility of legitimate doubt and the existence of sufficient guarantees to exclude such doubt.

[22] As I have said, these principles appear to be clear and to have been restated repeatedly in very much the same language. Turning to the decided cases, in my view it would not as I have indicated, be helpful to examine the particular facts or detailed reasoning in many of those to which we were referred. These cases can, I think, be regarded as falling into six groups:-

(iii) Cases in which there was a suspicion of actual prejudice on the part of a judge

[23] There do not appear to be any European decisions concerned with the appointment of temporary judges in circumstances parallel to those of the present case, as distinct from cases in which the duration of a judicial appointment has been taken into account along with other factors. There are, however, two cases which have a certain similarity to, or which raise problems comparable with, those of the present case. The first of these is Stieringer v. Germany (1996) Application No. 28899/95, a decision of the Commission. The applicant in that case was charged with fraud and his trial eventually began before a court described as the 19B Auxiliary Criminal Chamber of the Berlin Regional Court, which was composed of a presiding judge, two probationary judges and two lay assessors. The applicant complained about the composition of the court, both in regard to the presence of the probationary judges and with regard to the lay assessors. The applicant was convicted and appealed but his complaints were rejected. He thereafter applied to the Commission. The Commission first considered and rejected the complaint with regard to the lay assessors, which is not relevant to the present issue. When it came to deal with the question of the probationary judges, the Commission first reminded itself of the general principles, as earlier set out in this opinion, and of the facts as to the composition of the court, noting that one of the two probationary judges was at the time when the trial opened proposed for appointment as a permanent judge and that she was duly so appointed some days after the hearing commenced. The Commission's report continues:

[24] The Commission then refers to the findings of the German Federal Court of Justice and continues by observing that regard must be had not only to the provisions of the law but to how they actually operate in practice. The report then says:

[25] The Commission then further considers the particular circumstances in which the tribunal to try the applicant was set up and concludes that there was no breach of Article 6.1.

[26] The other case which requires to be mentioned is Plahte v. Norway, a decision of the Norwegian Supreme Court but one which applies the principles of the European Convention. The case was concerned with an application for exemption from military service for reasons of conscience which, under Norwegian law, fell to be dealt with first by a Magistrates Court and thereafter by a Court of Appeal. The Court of Appeal determined that the conditions for exemption did not exist and there was then an appeal to the Supreme Court. The judge who presided at the court of appeal hearing was an acting presiding judge, named Stoltz, who had previously been employed in various business capacities and had applied for a judgeship in a court of appeal but had not been given the appointment. He had then been appointed as acting presiding judge and at the same time was an applicant in respect of another court appointment to which he was not appointed. Later, after the decision in the particular case, he applied for and was appointed to a vacant judgeship. In the judgment of the Supreme Court, the issue is focused as follows:

The judgment then refers to the fact that a temporary presiding judge was allocated to the Crown court for a year with a possibility of extension depending on an assessment by the Ministry of Justice and to the fact that Stoltz was aiming at a career as a judge but that it could not be assumed that a person appointed an acting judge could expect to be appointed as a judge. The court further emphasises that the State, as represented by the Ministry of Justice, was a party to the particular case and that the case was one of some political importance. It was further taken into account that there were no practical considerations requiring that Stoltz be accepted as a judge since arrangements had previously been made, in other courts, whereby acting judges never dealt with cases to which the State was a party. The judgment proceeds to refer to the difference between the protection available to acting judges as opposed to permanent judges and to public debate both in the legislature and elsewhere with regard to the appointment of acting judges, and states:

[27] It seems to me that these two decisions are useful illustrations of the kind of reasoning which has to be applied in a case like this, in conformity with the general principles of the Convention. They show the care which has to be taken in considering whether temporary or probationary judges can comply with Article 6.1 but they do also show that there is an acceptance that in certain circumstances, for reasons of training or for other practical reasons, the use of such judges may be acceptable. They also show the importance of distinguishing between different types of case in considering the appropriateness of the use of temporary or probationary judges.

[28] In the light of the principles above set out and the decisions considered, it is, therefore, possible to focus on a number of considerations which are relevant for the purposes of the present case. They are the manner of appointment: the term of office: the existence of guarantees against outside influence: and the existence or non-existence of factors which may create an appearance of lack of independence.

[29] Considering first the manner and term of appointment of a temporary judge, it is the case that the appointment is made and renewed by the Executive, and that the period of appointment is determined by the executive, there being no prescribed period laid down by law. On the other hand, in the normal case, the term of appointment has been for three years and there is no example of a holder whose appointment has not been renewed. The period of appointment is short but comparable periods have been regarded as unobjectionable in, for example, Ringeisen v. Austria (1971) 1 EHRR 455 (5 years) and Sramek v. Austria (1884) 7 E.H.R.R. 351. Moreover, in principle it is accepted that appointment for a particular case or subject may not be objectionable. The duration of the appointment, therefore, in my view, has to be considered in relation to the use actually made of the temporary judges.

[30] Secondly, the appointment is, for the reasons given earlier, in my view, not terminable during its currency and the temporary judge enjoys the status and immunities of a permanent judge in relation to his actings as a judge.

[31] Thirdly, the temporary judge functions as a part of the normal judicial system, subject to all the normal rules of law, evidence and procedure. These include the availability of legal representation and the availability of an appeal process.

[32] Fourthly, temporary judges are not employed in cases which might be regarded as sensitive in relation to the State, such as cases of judicial review. In their functioning in regard to civil cases between parties, they can be regarded as providing supplementary assistance to the permanently established court and therefore as being employed for a purpose which has been recognised as legitimate. Notwithstanding the fact that many temporary judges have subsequently been appointed as permanent judges, the appointment has not been regarded as, in any sense, probationary and the considerations relevant to probationary judges do not apply.

[33] It may be appropriate to add that, although the temporary judge continues in practice and therefore in contact with clients and firms of solicitors, he is subject to the normal rules about declinature where a conflict of interest arises and there is thus guarantee against possibility that he might tend to favour, for miscellaneous reasons, one side in a dispute rather than another. This is a matter not particularly developed in the European jurisprudence, to which I will return after mentioning the Canadian cases.

[34] Looking at all these factors together, it respectfully appears to me that an assessment of the position of the temporary judge in this case, according to the principles established by the Convention and illustrated in the decisions of the Commission and court, lends no support to the submission that the temporary judge should not be regarded as an independent and impartial tribunal and as satisfying the requirements of Article 6.1.

[35] The Canadian cases contain valuable discussions of the principles of judicial independence directed towards the provisions of the Canadian Charter of Rights and Freedoms, which provide a right to a fair and public hearing by an independent and impartial tribunal. In particular, they are concerned with factors which may be construed as relevant to judicial independence and impartiality which have not, so far as appears from the references given to us, been directly considered in the European cases, such as the significance of a person acting as a judge while continuing in legal practice. Because of the length of the opinions and because of the close discussion of particular provisions of the various Canadian legislative enactments dealing with courts and judges, it is by no means easy to summarise either the reasoning or the effects of the decisions, but it seems to me that some effort to do so is necessary.

[36] The first of these decisions is Valente v. The Queen 1985 24 D.L.R. (4th) 161. It was concerned with the position of provincial court judges. The opinion of the court, given by Le Dain J., identified three essential conditions of judicial independence, namely security of tenure, financial security (that is security both of salary and, where appropriate, pension) and institutional independence, that is independence with respect to matters of administration bearing directly on the exercise of judicial functions. Le Dain J. began by discussing independence and impartiality, and their relationship. He pointed out that conditions had changed over a number of years in regard to what ideally might be required in the way of substance and procedure for securing as ample a measure as possible of judicial independence. That went, however, with a recognition of a considerable variety of arrangements in Canada, so that it would not be feasible to apply the most rigorous conditions to the constitutional requirement of independence and the essential conditions must bear some reasonable relationship to the existing variety. The effect of the legislation provisions which, at the material time, applied to provincial court judges was that such a judge could be removed from office only for misbehaviour or for inability to perform his duties properly and only after an enquiry by a superior court judge at which the provincial court judge had been given an opportunity to be heard. Le Dain J. concluded that that situation, while falling short of the ideal or highest degree of security, reflected:

There was, however, in operation at the time a provision under which the executive could reappoint a provincial court judge after retirement to hold office, in effect, during pleasure and it was held that a judge so holding office could not be regarded as an independent tribunal. With regard to financial independence, Le Dain J. discussed the provisions under which the salaries of provincial court judges were fixed. The principal criticism brought against the arrangements was that judicial salaries were not made a charge on the consolidated revenue fund but were provided for by way of annual appropriation, but Le Dain J. observed:

[37] Le Dain J. went on to discuss institutional independence which he described as "a major issue at the present time". He referred to a number of publications and decisions in which it had been argued that judicial control over matters such as assignment of judges, sittings of court and court lists as well as the related matters of allocation of courtrooms and direction of administrative staff had generally been considered the essential minimum requirement for institutional or "collective" independence. He went on to say, however, that there was also increasing insistence on a stronger and more independent role in financial aspects of administration such as the preparation of budgets and the presentation and allocation of expenditure and in the personnel aspects of administration, such as recruitment, classification, promotion, remuneration and supervision of necessary support staff. His conclusion was expressed as follows:

[38] It does not appear to me that the decision and opinion in Valente are of material assistance in this case. This case should not, in my view, be regarded as raising any question of "institutional independence", actual or perceived. The use of temporary judges is under the control of the Lord President and the extent of that use is relatively small. In any event, I think that there is room for doubt whether institutional independence in the more extended sense discussed in the opinion in Valente, would or should be regarded, in a European context, as ideal or even as desirable. As regards the more limited sense discussed in the last passage above quoted, while no doubt there are some forms of executive interference in the management of court business which could be regarded as prejudicial to independence and impartiality, I think that there may possibly also be legitimate executive concerns about matters such as the efficient use of resources. I therefore incline to think that the proper approach on the basis of the European Convention would be to consider the effect of any such interference on a case by case basis.

[39] The second case is R. v. Lippe 1991 2 S.C.R. 114, which was concerned with the standing of the Municipal Courts in the province of Quebec. The attack was not on any lack of independence or impartiality on the part of any particular Municipal Court judge but, as Lamer C.J., expressed it, a challenge to the structure of the Municipal Court system which allowed part-time judges to continue to practice law. Lamer C.J. said that the submission made by the respondents in the appeal was that the two occupations of judge and lawyer were incompatible because they were expected to play very different roles in the judicial system: while judges must develop a state of mind marked by serenity, detachment, level headedness and moderation, lawyers must have a fundamentally different approach and, within the limits of legality and ethics, dedicate and devote themselves unreservedly to the partisan interests of those who become their clients. He continued:

[40] Lamer C.J. went on to discuss the principle of judicial independence and characterised that principle as follows:

[41] Lamer C.J. went on to say that the overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality but that judicial independence was only one component of impartiality. He continued:

[42] Later in his judgment Lamer C.J. accepted that a system which allowed for part-time judges was not an ideal system but indicated that the constitution did not always guarantee the ideal system and went on to analyse the question in what situations reasonable apprehension of bias on an institutional level might be raised. He recognised, as had been said in some of the documents submitted to the court, that the appointment of part-time judges, ad hoc judges, temporary and probationary judges was widespread throughout the world and obviously could not be changed overnight but that appropriate safeguards might be necessary. He went on to formulate the test as whether the fact that a part-time judge was permitted to continue to practice law would give rise to a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases. Having reviewed the points made by the respondents, to which reference has been made earlier, he reached the conclusion that a reasonable apprehension of bias would arise in such a number of cases. He turned then to the question whether there were sufficient guarantees of independence. He referred to the judicial oath, to a code of ethics which was applied and enforced in the case of Municipal Court judges and to a number of circumstances suggesting that the judges did in fact take their duties in regard to independence seriously. His final conclusion was expressed as follows.

[43] On that basis he held that the Municipal Court judges did constitute an independent and impartial tribunal.

[44] The decision in Lippe, is directly relevant to this case, in so far as it deals with the position of part-time judges who continue in legal practice. I am, however, not convinced by all the reasoning that lies behind the decision and in particular by the characterisation in it of the roles of judge and practitioner and the conflict between them. It is true that in Scotland until recently very little use has been made of temporary or part-time judges at an upper court level. There is, however, ample experience of the employment of practitioners in a variety of judicial capacities. For many years, the majority of Sheriffs Principal were practitioners; although it is true that there was a strict rule that a Sheriff Principal must not accept instructions in regard to a case arising from his Sheriffdom. Practitioners sit as chairmen of industrial or employment tribunals, medical appeal and social security tribunals, VAT tribunals and planning and other public inquiries. It is not for us to examine the position in England but we cannot ignore the fact that extensive use is made there of part-time, temporary and probationary appointments, as is illustrated by the decision in Locabail UK Ltd. v. Bayfield Properties Ltd. 2000 1 All E.R. 64. One of the advantages often claimed for education and professional training and experience in the law is the cultivation of independent habits of thought and judgment. Of course, we should not take an unduly utopian view of the integrity and independence of the legal profession. There must be safeguards, and, in particular, rules limiting the risk of actual or perceived conflicts of interest which might interfere with the proper performance of judicial duties. These considerations do, however, in my opinion, emphasise the extent to which each case must be considered on its own merits in a pragmatic way. I would add that the opinion in Lippe also seems to me to risk going too far in so far as they may suggest that judges should ideally be free from any control or influence by superior judges or judicial councils, and also free from any influences which might arise from hopes of preferment. In any functioning judicial system it is likely that some person or body, be it a chief justice or a judicial council, will have some control over how individual judges conduct business and that many judges in many systems will have hopes of promotion or at least a move to a more congenial post. Only a practical approach to particular cases can satisfactorily, in my opinion, resolve any real problems in such situations and distinguish them from purely theoretical ones.

[45] The third Canadian decision to which reference was made is Reference re: section 6(2) of the Territorial Court Act (N.W.T.) 1997 152 D.L.R. (4th) 132. The reference was concerned with the appointment of deputy territorial judges for fixed terms of two years or less, revocable upon the written recommendation of the chief judge. The essence of the decision was that the unlimited discretion in the executive to appoint or reappoint deputy judges was incompatible with the principles of judicial independence, amounting to clearly unconstitutional service at pleasure. Essentially, what the judge did was to apply the principles discussed in Valente and Lippe and on that basis conclude that the requirement of judicial independence was not satisfied.

[46] In my view, therefore, for the reasons which I have tried to explain, the Canadian cases, while illuminating in many respects, are not of much direct assistance in the present case and the question in the present case remains one of assessing, in a practical way, the actual situation of a temporary judge in dealing with a case of this kind. The decisions do, however, envisage a number of factors which may be capable of being considered as guarantees of independence. These include the taking of a judicial oath: the fact that the judge has a legal qualification: the extension of the privileges and protections of judicial office to the judge: the fact that the tribunal is part of the ordinary administration of justice, subject to the ordinary rules of evidence and procedure, including representation by lawyers: the availability of an appeal or review process: and the application of rules enabling or requiring the judge to decline jurisdiction in a case which raises any question as to his independence and impartiality.

[47] It does not seem to me to be necessary to go through the reasoning of the court in Starrs and Chalmers v. P.F. Linlithgow in any detail. It is, I think, clear that the factors which primarily weighed with the court were that the appointment of a temporary sheriff was subject to an unlimited power of recall; that the appointment was made by the Executive for a limited period of only one year and was renewable at the pleasure of the Executive; and that the actual employment of the temporary sheriff during the period of the appointment, and hence his actual remuneration, was also subject to Executive control. These factors, coupled with the relatively large proportion of the work of the Sheriff Court being undertaken by temporary sheriffs, led to the conclusion that there was an appearance of dependence on the executive inconsistent with the requirements of Article 6.1. The court did not, however, accept an argument that continuance in practice was, in the circumstances prevailing in Scotland, a factor pointing to lack of independence or impartiality.

[48] In my view, the position of temporary judges is clearly and markedly distinguished from that of temporary sheriffs, as considered in Starrs and Chalmers v. P.F. Linlithgow, in the light of the applicable principles. Temporary sheriffs were appointed for one year at a time, subject to renewal, and were subject to removal at any time during their period of office. The situation which had developed was that up to 25% of the work of the court was being undertaken by temporary sheriffs. These are all, in my view, factors which might affect the appearance of independence of the court. As some of the cases referred to above have noted, there is a difference between, on the one hand, "proper" temporary appointments, for purposes such as covering for sickness or other temporary absence, supplementing the court when there is a pressure of business or even, subject to appropriate safeguards, for purposes of training or probation, and, on the other hand, "improper" temporary appointments covering for a failure on the part of the executive to provide for the proper staffing of a full-time permanent court. I have no difficulty in understanding how the combination of the factors considered in Starrs and Chalmers v. P.F. Linlithgow was thought sufficient to raise a perception of lack of independence. The position of temporary judges, however, is, in my opinion, different. They are appointed for longer periods and, in my opinion, are not subject to removal during those periods. They undertake a relatively small part of the work of the Court of Session. The range of work with which they deal is limited and their actual role has, so far as any information before us shows, been closer to that of proper rather than improper temporary appointments. They are part of the ordinary judicial structure and their decisions are subject to appeal. They are also subject to the rules as to declinature. I do not think it necessary to examine these rules in depth: they have been comprehensively analysed in the decision in Locabail supra in terms which are broadly applicable in Scotland, and, on any view, provide extensive protection against actual or perceived conflicts of interest.

[49] There are three further arguments which should be mentioned. Firstly, it was suggested that colleagues of a temporary judge at the bar would find it anomalous to deal with him as an opponent and as a judge within a short time scale. This argument was mentioned by Lord Reed in Starrs and Chalmers. It seems to me that much depends on questions of balance and proportion. In the ordinary course members of the bar play different roles, and change them, often daily. Petitioners may be in alliance one day and in opposition the next, and I doubt whether there is any greater anomaly in the change of roles involved in acting as a temporary judge. Secondly, it was suggested that a temporary judge would be perceived as an inferior judge, and the employment of such a judge as setting up a two-tier system. There is, perhaps, some truth in that in some circumstances: on the other hand the personal qualities of a temporary judge or his expertise in a particular subject-matter may be superior. On either view, I do not think that this argument adds materially to the question of independence or impartiality. Thirdly, it was suggested that a temporary judge was liable to be "sidelined": but the use of temporary judges is under the control of the Lord President, and it is only, I think, in an extreme form of the argument for total independence that the fact that a judge is subject to the control of a superior judicial officer is regarded as inconsistent with independence.

[50] In all these circumstances, the employment of temporary judges in the Court of Session, in the manner in which they have in fact been employed, could not, in my view, reasonably be regarded as giving rise to a perception of undue executive influence over the court or lack of independence or impartiality in the temporary judge.

[51] The argument, as expressed in the pursuers' written submission was that the use of a temporary judge who did not constitute an independent and impartial tribunal was contrary to the common law rights of the parties. The authorities founded on were Mackay and Esselemont v. Lord Advocate supra, Cameron & Others v. King and Others (1902) 10 S.L.T. 429 and Hood Barrs v. British Wool Marketing Board 1957 S.C. 72. It was also suggested that for a temporary judge to engage in private practice was to engage in an occupation inconsistent with impartiality and therefore inconsistent with being a judge and so contrary to the concluding words of para. 11(b) of Schedule 4 to the 1990 Act. This part of the argument did not seem to me to be pressed with much enthusiasm, and I do not think that it requires extensive discussion. The authorities cited stress the importance of judicial independence and the importance of avoiding any appearance of impartiality but they do not suggest any requirements different from or additional to those which arise from the Convention and the authorities under it. Accordingly, in my opinion, the same reasoning leads to the conclusion that the hearing of this case by Mr. Coutts did not involve any breach of any common law rights of the pursuer.

[52] On behalf of the defender, it was submitted that by failing to raise any objection either to the allocation of Mr. Coutts to hear the case or to his undertaking it at the beginning of, or at any time during, the proof, the pursuer had waived or departed from any possible objection under Article 6.1. It is, I think, clearly established that a party may lose the right to object to his case being heard by a particular tribunal on the ground of a contravention of Article 6.1. So much is clearly stated in Oberschlick v. Austria (1991) 19 E.H.R.R. 266. That was a case in which a journalist had been convicted, on a private prosecution, of defamation and it raised a number of questions as to freedom of expression. The relevant statement, for this purpose, is found in paragraph 51 of the judgment:

[53] The court went on to hold that in the particular circumstances of that case waiver had not been established. The same principle was applied in Bulut v. Austria 1996 R.J.D. 1996 - II 347, in which it was held that the right to object had been waived. Similar reasoning was applied in Hakansson & Sturrson v. Sweden 1990 13 E.H.R.R. 1, a case in which it was held that the applicants had tacitly but unequivocally waived a right to a public hearing. It was observed, in paragraph 67, that in that case the litigation did not appear to involve any questions of public interest which could have made a public hearing necessary. It may be added, although it is not immediately relevant to this case, that in Deweer v. Belgium 1980 2 EHRR 439 it was held that waiver was competent in a criminal as well as a civil case, so long as it was not coerced.

[54] In the light of these authorities, the questions in the present case seem to me to be whether the pursuer has tacitly but unequivocally waived his right to object to the temporary judge as the tribunal to determine his case: and whether there is anything in the circumstances which might be regarded as amounting to coercion. The argument on the first point centred on the question whether before the decision in Starrs and Chalmers v. P.F. Linlithgow there was anything to alert the pursuer and his advisers to the possibility of a successful challenge to the temporary judge. On behalf of the pursuer, it was submitted that the key to any allegation of waiver must be actual knowledge on their part of the existence and validity of the ground of objection. It was not, it was submitted, necessary for a party to undertake something which would amount to challenging or seeking to change the existing law, nor was it necessary to undertake an argument which could not possibly succeed in a particular court in order to avoid the risk of being held to have waived the right to take it in an appropriate forum. On behalf of the defender, it was submitted that the possibility of a challenge had been well-known in the profession before the decision in Starrs and Chalmers and that by agreeing to proceed with the proof before the temporary judge the pursuer had unequivocally departed from any right to object. In my view, this issue can be dealt with quite briefly. In my opinion, it was widely appreciated in the legal profession, from the moment that it was known that the Convention would come into force, that a number of particular issues would be raised and that these included issues as to the status of temporary sheriffs and temporary judges.

[55] As regards the second question, while it is obvious that there was no direct compulsion on the pursuer to proceed, it might perhaps be asked whether there was anything in the circumstances which might put pressure on him to proceed, such as reluctance to see the case postponed. In the circumstances described to us, however, the pursuer and his advisers had ample opportunity to contact the Keeper of the Rolls and protest at the allocation of the case, or at least question whether there was any alternative. They did not do so. There is, indeed, nothing to suggest that they were anything less than perfectly satisfied with the arrangement.

[56] It is, I think, not irrelevant to bear in mind what sort of litigation this is. It is, in every possible respect, a private dispute between private parties. It was suggested on behalf of the pursuer that the dispute was at least as important a matter as a summary prosecution before a temporary sheriff and it is true that for the parties it is important. It is, however, unequivocally a private dispute which does not involve the Government or the executive and which does not raise any questions of public interest. It is the sort of dispute which parties might well have agreed to dispose of by arbitration or by summary procedure or by commercial procedure. In these circumstances, in my opinion, the pursuer must be held to have passed from any objection to the disposal of the case by a temporary judge when he failed to raise any objection to the allocation of the temporary judge to hear the case or, at latest, to object at the start of the proof. For these reasons, in my opinion, even if the view taken as to the status of the temporary judge were other than I have indicated, the pursuer's challenge would still fail.

[57] In the whole circumstances, in my opinion, the pursuer's allegation that the temporary judge did not constitute an independent and impartial tribunal falls to be rejected and, in any event, in my opinion, the pursuer has waived any right to object to the hearing of the case by the temporary judge. In these circumstances, this case should be remitted to the judge to proceed to issue his decision.

[1] The pursuer sued the defender for damages for breach of contract, breach of warranty and misrepresentation. He alleged that he had been materially misled as to the number of residents in the residential home which he purchased from the defender. Profitability was a function of occupancy. The home had proved to be under-occupied and therefore unprofitable at the reference period. After preliminary procedure, a diet of proof was fixed to commence on Tuesday, 28 September 1999. The parties were informed on Friday, 24 September that the case had been allocated to Temporary Judge Coutts. No objection was taken to the allocation of the business to the temporary judge. The case commenced, evidence was led over six days, counsel made their closing submissions, and the proof was duly completed. The temporary judge made avizandum. The issues between parties included the credibility of the several witnesses led. In addition, the defender's counsel contended that there was inadequate evidence to establish the pursuer's damages claim in any event. While the case was at avizandum the High Court of Justiciary decided and issued opinions in the cases of Starrs and Chalmers v Procurator Fiscal, Linlithgow 2000 JC 208. The present case and others currently before the temporary judge were put out By Order to ascertain the parties' attitudes to the temporary judge continuing to deal with the cases. The pursuer's counsel took the opportunity to raise as a devolution issue the competency of the temporary judge to adjudicate. The temporary judge reported the matter in terms of Rule of Court 25A.7.

[2] The broad issue raised by the pursuer was whether a temporary judge of the Court of Session appointed in terms of section 35 (3) of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1990 was an independent and impartial tribunal for the purposes of Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The pursuer contended that the terms and conditions of appointment of the temporary judge failed to satisfy the criteria properly applicable for the purposes of the Article. Accordingly, it was said, it was contrary to the Scottish Executive's obligations under the Convention for the Executive to continue to provide the services of the temporary judge on his existing commission after 1 July 1999, when the relevant provisions of the Scotland Act 1998 came into force. The Executive should have recalled the commission or altered its terms so as to comply with the Convention. Alternatively the Executive should not have continued to service the provision of temporary judicial facilities, in particular by providing funds in support of the facilities.

[3] For the pursuer to succeed in the present application, he must demonstrate that he meets the "victim" test prescribed in Article 34 of the Convention and he must aver relevant facts and circumstances to show that a "devolution issue", as defined by paragraph 1 of schedule 6 to the Scotland Act, arises for determination by the court. It was not disputed that the pursuer would satisfy the victim test if a devolution issue arose: Marckx v Belgium (1979) 2 EHRR 330, and Johnston v Ireland (1986) 9 E.H.R.R. 203.

[4] The defender and Lord Advocate contended that, properly understood, the pursuer's complaints related to alleged failures of the Scottish Executive to act, rather than positive acts and that no devolution issue arose. Section 57 (2) of the Scotland Act prohibited only "acts" of the Executive. A failure to act was not within the scope of the sub-section. Continuing to fund temporary judges was, on a proper analysis, truly a failure to desist from paying such salaries. The temporary judges were already appointed and available for use by the Lord President. The Executive simply acknowledged an obligation to pay their salaries if used.

[5] It is the obligation of the state to ensure the means of affording the public a hearing before an independent and impartial tribunal within a reasonable time: paragraph [15] below. In terms of that obligation, it is for the state to ensure that there are sufficient judicial resources to achieve that end. The nomination and appointment of temporary judges of the Court of Session created a resource which could be used, or not used, as an element in the provision of judicial services in Scotland. If the use of temporary appointments is held to be an infringement of Article 6, continuing to offer them as part of the total judicial provision was an act of the Executive. The means of putting an end to that situation might have involved withdrawing their commissions. Failure to do so could be characterised as a failure to act. But the essential explanation of the problem would remain the tendering of the resource of temporary judges by the Executive as part of the supply of judicial services. Accordingly there is a devolution issue even on the narrow view of section 57 (2). However, it is appropriate to discuss the broader argument.

[7] Section 57 is one of a group of provisions that regulate the exercise of the functions of the Scottish Executive, and the consequences of executive conduct. Section 52 is the first of these. Sub-section (4) provides for the collective responsibility of the Executive, with certain specific exceptions relating to the functions of the First Minister and the Lord Advocate. Sub-section (4) provides that:

With the exception of the functions specific to the First Minister and the Lord Advocate, the rule of collective responsibility is therefore expressed widely, to encompass all acts and omissions within the scope of the Executive's powers.

[8] Section 54 provides that references in the Act to a function being within or outside "devolved competence" are to be read in accordance with the provision, and proceeds to limit devolved competence in two ways. In the first of these, the section deals with the making and confirmation of subordinate legislation. In the second, sub-section (3) limits devolved competence derivatively, by providing that whatever would be outside of the legislative competence of the Parliament would be outside devolved competence.

[9] Section 57 (2) is concerned with a further specific limitation on the powers of the Executive expressed by reference to the Convention and Community law. It is not a temporary or transitional provision. It will continue to apply after the Human Rights Act comes fully into force. Section 129 (2) provides that section 57 (2) is to have the same effect before the Human Rights Act comes into effect as it shall have after that time. If the contentions of the defender and the Lord Advocate are correct, section 57 (2) will continue, therefore, for the indefinite future to provide, along with the procedural provisions in the Scotland Act, a remedy for positive actions which are incompatible with the Convention or with Community law. But it will not provide a remedy, read with those procedural provisions, for any failure to act in conformity with obligations under either head.

[10] It was contended by the Lord Advocate that when the Human Rights Act comes into force, section 6 sub-sections (1) and (2) of that Act will prohibit all acts and omissions of the Executive as a public authority which are incompatible with Convention rights, subject to sub-section (2) and the restrictions in sub-section (6). That would imply that the Scottish Executive remained uncontrolled in relation to omissions to act in conformity with Community law for the indefinite future. So far as failure to implement Convention obligations was concerned, the Executive would be subject to the Human Rights Act, but none of the procedural provisions of the Scotland Act for the disposal of devolution issues would apply, despite their terms.

[11] Section 29 (2) provides that provisions of the Scottish Parliament are outside legislative competence if incompatible with any Convention right or with Community law. It appears that that would necessarily encompass provisions which failed properly to implement matters of Community law as it applied to provisions which positively infringed Community law. If the Lord Advocate's argument is correct, the Scottish Executive alone of Scottish institutions would be uninhibited in refraining from acting compatibly with Community law. It was suggested that the answer to this problem lay in paragraph 1 (c) of the sixth schedule. Failure to act in accordance with the Convention or with Community law would fall within that provision after the full implementation of the Human Rights Act. I do not accept that. In the first place it is inconsistent with the structure of paragraph 1. If sub-paragraph (c) has that effect after full implement in relation to failures to act, it must have it now in relation to positive acts. Sub-paragraph (d) would be redundant. One would still be left seeking a role for sub-paragraph (e).

[12] Mr McCreadie submitted that the interpretation advanced made sense of what Parliament had done, and that it was consistent with the provisions regulating devolution in Wales and Northern Ireland. But the structure of the Scotland Act is not the same as the other Acts. It is difficult to make sense of much of the sixth schedule if he is correct. Schedule 6 subparagraphs 1(d) and (e) contain references to acts and failures to act in the definition of "devolution issue", which is precisely the context for the present argument. That is a different context from that defined by section 54 to which sub-paragraph (c) clearly relates. Section 100, in providing for the victim test, refers to act and failure to act. If Mr McCreadie is right one will have two regimes after full implementation of the Human Rights Act. Under the Human Rights Act, failures to act will be subject to judicial scrutiny. But under the Scotland Act, only positive acts would be covered as devolution issues. The procedural framework provided by the Scotland Act would have been frustrated in respect of failures to act. In my opinion it is preferable to read section 57(2) as encompassing both acts and failures to act, and in that way give content to the whole provisions of schedule 6.

[13] In H. M. Advocate v Robb 1999 S.C.C.R. 971, the refined argument developed by Mr McCreadie was not advanced. In one respect, the concern I had about the interaction of sub-sections (2) and (3) of section 57 has strengthened. In the debate on the amendment which introduced section 57 (3) in the House of Lords, on 28 October 1998, Hansard Column 2042, Lord Hope of Craighead asked:

The Lord Advocate, Lord Hardie, said that he entirely agreed that that was the position. It appears that they envisaged in this exchange both the positive act of initiating a prosecution and the negative act of refraining from prosecution, in other words, acting and failing to act in relation to a criminal prosecution.

[14] In my opinion, the pursuer's averments disclose a relevant devolution issue on either interpretation of section 57 (2).

[15] It is the obligation of states which have ratified the Convention on Human Rights to secure to everyone within their jurisdiction the rights and freedoms protected by the Convention: Young & Others v United Kingdom (1981) 4 E.H.R.R. 38 at paragraph 49. Article 6. 1 provides, inter alia:

The Article extends the principle enshrined in Article 10 of the Charter of the United Nations 1945 by requiring disposal within a reasonable time. It has parallels in Article 8 of the American Convention on Human Rights, and in Commonwealth constitutional documents, particularly those of Canada. These provisions were referred to in argument and in a number of the authorities and papers to which we were referred. Article 6 (1) of the Convention will have a profound effect on the analysis and interpretation of the state's obligation to ensure that Scottish courts are enabled to meet the individual rights conferred: (a) to a fair and public hearing; (b) before an independent and impartial tribunal established by law; and (c) within a reasonable time. The second and third of these rights are likely to have a direct bearing on the structure and size of the courts as Convention jurisprudence develops.

[16] The general approach of the Court and of the Commission to this part of Article 6 is well settled. We were referred to Ringeisen v Austria (1971) 1 EHRR 455 at paragraph 95; Campbell & Fell v United Kingdom (1984) 7 E.H.H.R 165, in which the Court drew on earlier decisions in Delcourt v Belgium 1 E.H.H.R. 355, Le Compte Van Leuven & De Meyere v Belgium (1991) 4 E.H.H.R. 188; and Piersack v Belgium (1983) 5 E.H.H.R. 169 and Bryan v United Kingdom (1994) 21 E.H.H.R 324. In Bryan the test of independence was expressed as follows:

[17] In relation to the question of impartiality, a distinction has to be drawn between a subjective test, which concerns the conviction of a judge in a given case, and an objective test, aimed at ascertaining whether the judge has offered guarantees sufficient to exclude any legitimate doubt in this respect: Langborger v Sweden (1989) 12 E.H.H.R. 416, Bryan v United Kingdom, at page 358, and the report of the Commission in pursuance of Article 31 of the Convention at paragraph 56 in McGonnell v United Kingdom 20 October 1998, unreported, for example.

[18] There are similar observations in other cases such as Findlay v United Kingdom (1997) R.J.D. 1997-1 No 30, and in Ciraklar v Turkey Application No 70/1997/854/1061 at paragraph 38. In Belilos v Switzerland April, 1988, Series A No. 132 10 E.H.R.R. 466, the Court said:

[19] In applying Article 6 to the circumstances of particular cases the European institutions have shown considerable flexibility in responding to local conditions, and appear deliberately to have avoided the elaboration of criteria which might be determinative of other cases and cases relating to the circumstances of other jurisdictions. An example of the court's approach is seen in Deweer v Belgium (1980) 2 E.H.H.R. 439 at paragraph 49. Observing that the right to a court is subject to limitations, the judgment stated: "it is not the Court's function, though, to elaborate a general theory of such limitations".

[20] The observations of Bratza and Duffy in Practitioner's Handbook of EC Law chapter 32, at paragraph 32.3.1, on the use of the institutions' case law are instructive. Insights into activities which infringe the Convention, a "living instrument", change with time. In addition to warning against making indiscriminate use of older decisions, the commentators say, in particular:

[21] There is also a consistent emphasis on the practical realities of the situations considered. In Eccles, McPhillips & McShane v Ireland (1988) 59 DR 212, having cited the general test, the Commission stated, at page 218:

The supervisory jurisdiction of the High Court and the availability of appeal to the ordinary courts of appeal were taken into account, together with the rules of procedure and evidence applied. Purely theoretical arguments were not supported.

[22] It is established in the European jurisprudence that it is generally essential to consider the proceedings as a whole: Crociani. At paragraph 3 of its opinion in that case, the Commission stated:

[23] Another factor of importance is that the Commission and the Court have not adopted a narrow analytical approach to the expression "independent and impartial", consistently distinguishing these as two independent, much less mutually exclusive factors . The overall test applied in Ciraklar was whether there were ascertainable facts, objectively justified, which gave rise to a legitimate reason to fear that a particular body lacked the qualities of independence and impartiality: paragraph 38. Having mentioned the two elements, however, the judgment noted that in the instant case it was difficult to dissociate impartiality from independence and the Court proceeded to consider them together accordingly. In that respect the Court followed the same approach as it had in Findlay v United Kingdom (1997) R.J.D. 1997-1 No 30. The same view was taken in the judgment in McGonnell v United Kingdom Application No 28488/95, 8 February, 2000 at paragraphs 48 and 49. In Pullar v United Kingdom (1996) 22 EHRR 391, at paragraph 38, there is an example of the selection of impartiality as the focus for examining the facts. But that was against the background of the general proposition that the two elements are often difficult to dissociate.

[24] This approach can be compared with that found in the judgments of the Canadian courts to which we were referred. The earliest of the cases was Valente v The Queen (1985) D.L.R. 161. The case dealt with the position of an inferior court judge. Sections 99 and 100 of the Canadian Constitution Act 1867 secured the independence of superior court judges by providing security of tenure, a fixed retiral age, and payment of their salaries allowances and pensions. It was contended that these provisions, which had their historical inspiration in the Act of Settlement (page 175-6), should provide the uniform standard of judicial independence. Le Dain J, delivering the judgment of the Supreme Court, did not accept that proposition, having regard to the terms of the relevant legislation, the Canadian Charter of Rights and Freedoms. Section 11 (d) provided for trial of a person charged with an offence "in a public hearing by an independent and impartial tribunal". At page 169, Le Dain J said:

He identified as the essential conditions of judicial independence: (1) security of tenure; (2) financial security; and (3) institutional independence. It is unnecessary to discuss at length the analysis of these requirements in the context of that case. The parallels with the present case are not sufficiently close to justify that course. But there are several points which are important. In the first place, he distinguished several levels of security of tenure, and rejected the notion that the highest level of security was essential for all categories of judge: pages 179-80. At page 180 he said:

Provided the necessary objective guarantees were in position, an office defined in any of these ways might meet his test of tenure. In relation to financial security, he considered that the essence of the matter was that the right to salary or other remuneration should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence: page 184. The essentials of institutional independence he summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function: page 190.

[25] The next Canadian case referred to was R. v Lippe (1991) 2 S.C.R. 114 in which the Canadian jurisprudence was developed by Lamer C.J. The case again related to section 11 (d) of the Charter. In addition there were questions relating to the Quebec Charter of Human Rights and Freedoms. At page 132 the Chief Justice stated that he proceeded on the basis that the three essential conditions of independence set out by Le Dain J were satisfied. The issue before the court was whether the legislation which provided that municipal courts be presided over by part-time judges who were permitted simultaneously to remain active in private practice. At page 143 he said:

[26] The third Canadian case referred to was Reference re s. 6 (2) of the Territorial Court Act (N.W.T.) 1997 152 D.L.R. 132. The case was referred to the Northwest Territories Supreme Court as raising a constitutional question under the Charter of Rights. Section 6 (2) of the Territorial Court Act empowered the Commissioner, the chief executive officer of the government of the Northwest Territories, to appoint deputy judges as he considered necessary. The appointments were for two years or less "unless sooner revoked by the Commissioner." There was power to reappoint. The case is not helpful on its facts. But the analysis of the developing constitutional jurisprudence of the Canadian courts is of interest. At paragraph 38 of his opinion, Vertes J. notes that there had been recent developments from the earlier view that the concepts of independence and impartiality were inseparable. At paragraph 41, he sets out the developments by the Supreme Court of Canada. There were four aspects:

[27] This developing jurisprudence, with defined categories of tests within the overall requirements of the constitutional instruments, differs from the approach of the European Commission and Court. It also, in my view, involves tests which have no parallel in Convention jurisprudence. The idea of "institutional independence", developed in Valente at page 187, involves the notion that judges should have control over the administration of the courts. The claim goes beyond the assignation of work, sittings of the court, court lists, the allocation of court rooms and the control of administrative officers carrying out such functions. At page 188, Le Dain J said:

[28] On the approach of the Canadian courts, it would be doubtful whether the Court of Session as a whole was institutionally independent. The position of a permanent Outer House judge and that of a temporary Court of Session judge would be the same in respect of institutional independence. Neither would have the control over the administration of his court that the decisions suggest is required. We were not referred to any case which suggested that such an approach has been developed in the European jurisprudence.

[29] Mr Bovey argued that the Canadian cases should be treated as having the same value as the European cases. That argument is not sustainable in principle. This court must have regard to the decisions of the Court and Commission. But it is unnecessary to proceed on a ranking of the decisions. In my opinion it would be inappropriate to incorporate the Canadian jurisprudence in the way suggested. One cannot simply take the expression "institutional" in relation to independence and impartiality and apply it without regard to the context in which it was developed. In the Canadian cases "institutional" has taken on a specific meaning, reflecting an aspiration to total organisational autonomy which is alien to the structure of the Scottish courts.

[30] It is necessary, generally, to exercise considerable discretion in the application of decisions relating to different legal systems. It is true, as Mr Bovey submitted, that the principles on which the Canadian constitution is based reflect a number of similar principles in the unwritten United Kingdom constitution. But differences often develop in such circumstances. The divergent paths followed by bodies with similar backgrounds may not always become apparent until the differences become marked. There is always an initial and possibly fundamental difficulty that one is unfamiliar with the legal systems involved and with the structure of courts and the inter-relationships between the courts and other branches of government in the several countries in relation to which apparently similar issues have been considered. One may not readily discern the nature of the problem. It is perhaps obvious that there are significant differences between countries in which there is a career judiciary to which judges may be appointed at an early stage and seek promotion through a hierarchical system over the whole of their working lives and the United Kingdom where that is not generally the case. It does not follow that the fundamental differences are less in the case of a judicial system which appears to share more common characteristics with one's own. I think, nevertheless, that there is some value in looking at the way the European institutions have disposed of some of the cases we were referred to.

[31] Zand v Austria DR 15 (1979) 19 concerned the labour court of Salzburg. The executive had power to establish employment tribunals where a need arose. The relevant ministerial decree set up a court in Salzburg and defined its territorial jurisdiction. Among other grounds Mr Zand challenged the jurisdiction of the court under Article 6. 1 of the Convention. Of the issues which arose before the Commission only "C" is material at this stage, namely whether the Salzburg court was "independent". In paragraph 74 of its opinion, the Commission said:

Two points were made by the applicant, that the wide discretion given to the executive in connection with the establishment and abolition of the labour courts and the procedure for the appointment and removal of presiding judges might impair their independence. Both points were rejected. The attack on the appointment procedures fell on particular grounds. The presiding judges had to be appointed from the ranks of serving permanent judges whose independence was guaranteed. In regard to this second contention, however, the Commission stated at paragraph 80:

[32] Zand was a relatively early case. The scope of the examination of "independence" has been widened. But a number of points arise. In the first place, the vulnerability of the tribunal to executive interference was tested by reference to objectively ascertainable fact: the demand for judicial services of the class in question within identifiable territorial areas. The decision whether or not to establish and maintain tribunals was not arbitrary, and could be tested. The provision of judicial services generally may be tested on the same approach. Rules and procedures regulating appointment and removal were also identified as material factors at this early stage. Temporary appointments were not considered as such. The expression in paragraph 80 would, as a simple matter of language, cover the case of a judge appointed for a term of years provided that he could not be removed by the executive mid-term. But it would make contrary to the Convention any appointment which was terminable at the will of the executive mid-term.

[33] Sramek v Austria (1984) 7 E.H.R.R. 351 involved a tribunal with authority to adjudicate on property transactions. The tribunal refused Mr Sramek registration of a property transfer apparently on the basis that there was already a risk of foreign domination in the Hopfgarten area of the Tyrol. The tribunal membership had been changed in the light of an earlier adverse finding of the Constitutional Court that as then constituted it infringed Article 6. At the material time it comprised a property expert, a member of the judiciary, three civil servants from separate divisions, an agricultural expert and a lawyer. The members held office for three years and might be re-appointed. The removal of members was regulated by statute. Removal before the end of term was permitted if supervening circumstances would have disqualified the member in the first place, or if the regular performance of his duties became permanently impossible. In paragraph 38 of the judgment it was held that the terms of office satisfied the requirements of Article 6 as regards the length of term and the limited possibility of removal. The fact that power of appointment was vested in the executive did not infringe Article 6. The members sat in an individual capacity and the law prohibited instructions as to the performance of their duties. The presence of one of the civil servants was held to infringe Article 6. The transactions officer acted as reporter. It was held:

[34] In Bryan v United Kingdom (1996) 21 EHRR 342, the issue related to proceedings under the Town & Country Planning Act 1990 in connection with an enforcement notice. The appellant appealed to the Secretary of State and an inspector was appointed. In due course the inspector allowed time but otherwise upheld the enforcement notice. An attempt to challenge the decision in the High Court on a point of law failed. On the test of independence already quoted it was held (page 359 paragraph 38) that the proceedings before the inspector did not of themselves satisfy the requirements of Article 6. He did not present the appearance of an independent and impartial tribunal. There is no parallel between the position of inspector and that of temporary judge. The relevance of the case for present purposes is in relation to the second major issue. That was whether the provision for appeal to the High Court was sufficient to ensure that the proceedings as a whole complied with the Article. It was held that they did. An important aspect of the approach of the European institutions is the requirement that one should examine the proceedings as a whole. The availability of judicial review by or appeal to the ordinary courts may be a relevant consideration in certain cases.

[35] In Zand the Commission identified two elements of the principle of "independence", independence from the executive and independence from the parties. The second element is not material for present purposes, since there is no allegation that there was any lack of independence in that sense. There is a similar expression in the later case of Crociani at paragraph 10, pages 220-1. In that case it was further stated that the same independence must be established in respect of the legislature. In Bryan the test was expressed more broadly, as already mentioned.

[36] The sense in which the European institutions have so far discussed "independence" is considerably narrower than the view taken in Canada. In Starrs, at page 232, Lord Prosser said:

That formulation was close to, but broader than, the observations of Lamer C.J. in R. v Lippe at page 137 and may be too broad in light of the European cases. In the present case, however, it is not suggested that the temporary judge was dependent on any third party other than the Executive. Clearly, in relation to the Executive, control of the judicial process is not required for an infringement of the prohibition. A much lower level of influence will suffice. On the other hand, a degree of "dependence" is inevitable in a society in which judges' remuneration and the machinery of justice are provided and funded by the state. On existing European jurisprudence it is necessary to find something objectionable in the sense of affecting the performance of judicial duties, or as appearing to have that affect, in the objectively ascertainable circumstances if there is to be held to be a breach of Article 6 (1).

[37] The question of tenure was central to all submissions in this case. In his report the temporary judge narrates the history of his appointments. He was first appointed in 1991 for a period of three years. His appointment was renewed twice. The terms on which his appointment was renewed on 17 February, 1997 by the then Secretary of State were set out in a commission in the following terms:

The Lord President has imposed certain restrictions on the use of temporary judges. These have varied from time to time. The temporary judge states in his report that the current restrictions applicable to practising members of the Bar are that they do not sit in civil jury trials, nor in cases of particular public interest, judicial review cases, actions on the commercial roll, motions for interim interdict, in an appellate capacity or in any criminal matters. The prior agreement of the Lord President is required for their engagement on any particular business.

[38] In Starrs it was held that an appointment terminable at the will of the Executive in terms of section 11 (4) of the Sheriff Courts (Scotland) Act 1971 did not meet the requirements of the Convention. None of the parties challenged the decision in Starrs in this case. The pursuer contends that the temporary judge's position is in all material respects the same as that of the temporary sheriff. For the pursuer, this was approached as a question of general principle involving two broad propositions on the interpretation of the 1990 Act: (a) that the power to appoint temporary judges permitted the selection of any period, however short; and (b) that during his term of appointment, whatever its nominal duration, the temporary judge had no security of tenure. It was said that temporary judges appointed on the United Kingdom model were unique in Europe. Everywhere else they had been dispensed with. Whatever attractions common sense might suggest such appointments had, they were contrary to principle.

[39] Section 35 (3) of the 1990 Act empowers the Scottish Ministers, if it appears expedient, and after consultation with the Lord President, to appoint persons to act as temporary judges of the Court of Session. In terms of schedule 4 paragraph 5 the requisite qualifications for appointment as a temporary judge are the same as those for appointment as a judge of the Court of Session. The temporary judge may be appointed "for such period as the Scottish Ministers may determine" subject to an overall age limit of 70: paragraph 5. Paragraph 7 disapplies all statutory and common law rules relating to tenure of office, retirement, removal or disqualification of judges of the Court of Session. Counsel for the pursuer founded particularly on these provisions. The removal of the established judge's security of tenure, and of all rules relating to removal or disqualification created a vacuum. No alternative provision was made. The appointment could be for a very short period. There was no right to re-appointment. The Act did not provide the temporary judge with security of tenure during his term of office, whatever that might be. It followed from the terms and structure of the provisions that Parliament did not intend temporary judges to have tenure. They were like the generality of public servants, and held office at pleasure. During the term fixed, there was no scheme for the protection of the temporary judge from improper pressure in the conduct of litigation. For the defender and for the Lord Advocate it was contended that this approach was misconceived. Properly understood the temporary judge had security of tenure during the fixed term of his appointment. That was said to be clear from the terms in which the power was expressed, to appoint for a period, and from the terms of paragraph 9 which extended the temporary judge's competence beyond the term selected for the purpose of completing business in hand at the expiry of the period for which the temporary judge had been appointed. The Act provided for appointment for a fixed period, and there was no provision for premature termination.

[40] Until 1959 there was a clear and authoritative view that at common law it was of the nature of salaried judicial office that tenure was ad vitam aut culpam. That was the principal means of securing judicial independence: Erskine I, 2, 32; and Mackay & Esslemont v Lord Advocate 1937 SC 860. In Mackay & Esslemont at page 865, Lord Blackburn said:

Modern Scottish academic opinion has been less positive, but has tended to the same view: "Judicial Tenure and Judicial Pensions" by Wilson Finnie 1993 S.L.T. (News) 213. The ad vitam aut culpam principle has been qualified since 1959 by provisions for compulsory retiral, albeit at an age considerably beyond that applicable to most other office holders. To that extent, the United Kingdom Parliament had derogated from the common law principle asserted by the judges before 1990.

[41] It is obvious that a temporary judge appointed on the terms applicable in this case under the provisions of the 1990 Act does not fit Lord Blackburn's paradigm, even as modified for compulsory retiral. It is not impossible that the terms and conditions of appointment could be so restricted in an extreme case that the officer would not be regarded as a judge at all as a matter of common law. Apart from the permanent salaried judiciary, the background is clear. Subject to statute, Crown servants hold office only during the pleasure of the Crown: Mulvenna v The Admiralty 1926 S.C. 842, per Lord Blackburn at page 857; Gloag on Contract 2^nd ed. Page 158; Mackay & Esslemont v Lord Advocate at page 868. The pursuer contends that, quite apart from the Convention arguments deployed, temporary judges appointed under the 1990 Act are objectionable on the ground that they do not have the necessary characteristics of judges.

[42] In my opinion, there is no substance in the pursuer's common law argument in relation to temporary judges. It appears to me that the common law principle of tenure ad vitam aut culpam could be innovated on by Parliament in the case of officers other than the permanent salaried judiciary without jeopardising the character of the office as "judicial". The protection of the position of the permanent salaried judiciary, a discrete group of readily identifiable individuals sharing a common tenure, would not of itself prevent Parliament from creating a separate class of judicial officers having different terms of appointment. In Convention terms, considerable variation is accepted. In Eccles, McPhillips & McShane v Ireland at page 218, the Commission said, in relation to tenure: "Since the court is not a permanent court it follows that its members cannot, as such, enjoy the same judicial tenure as judges of the ordinary courts". Since a temporary appointment is, ex hypothesi, not a permanent salaried appointment, it would at least be arguable that it should not necessarily be assumed to have the incidents of the special status of permanent salaried judge. Whether the ordinary incidents of Crown appointment should then apply to the office would turn on the terms of the statute providing for the appointment.

[43] As a matter of common sense, there is little difficulty in understanding the need for some provision to enable the courts to deal with fluctuating demand. Taking account of a reasonable provision for predictable absence from duty on holiday, or in servicing tribunals with a judicial membership, the proportion of each year that a full time judge should work is or ought to be predictable. The time available for public duty in the case of the permanent members of the court is readily estimated. There is data available for the current and projected case load in civil and criminal courts. There are targets for the disposal of various categories of case. While these change from time to time, there is no fundamental difficulty in calculating demand and relating that demand to the capacity provided. There is a ready basis for ascertaining the likelihood that the existing corps of judges can satisfy the predicted demand "within a reasonable time", and, failing that, for determining the establishment required to meet the demand within that period. However, judges are not immune from illness and other personal problems that may render them incapable of performing their duties from time to time. Abnormal and unanticipated demand for judicial services may be generated by circumstances thought at the time to be unique, such as a major disaster or an unprecedented rise in detected criminal activity. There may also be unanticipated demand for the performance of duties appropriately allocated to judges, such as major public inquiries of a generally judicial character, which fall outwith the ordinary jurisdiction of the court. There may be legitimate concern about some of the tasks judges are asked to undertake from time to time: compare Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 70 A.L.J.R. 743. But even ignoring that possibility there is no difficulty in identifying the need for some flexible system of response to unusual or unanticipated demand if the judicial system is to be able to provide for an appropriate hearing to decide parties' rights and obligations within a reasonable time.

[44] The use of temporary judges was considered by the Norwegian Supreme Court in Plahte v The Norwegian State Case no 108/1997 (unreported). The case involved a claim for exemption from military service on grounds of conscience. The state sought a ruling in the Oslo Stipendiary Magistrates Court that he did not qualify for exemption. The case was regarded as controversial and politically sensitive, according to Mr Plahte's submissions before the Supreme Court. The court of first instance held that he did meet the requirements of the relevant code. The state appealed to the Borgating Court of Appeal. It reversed the decision. The president of the Court of Appeal was a temporary judge, Mr Stoltz. The facts set out contain a detailed narrative of Mr Stoltz's pursuit of judicial appointment over a period of about eighteen months, following a career in commerce. The judgment in the Supreme Court was delivered by Judge Matningsdal. The case was disposed of on the basis of domestic Norwegian statutory provisions and in particular The Court Act, section 108. That provision, which supplemented particular grounds of disqualification, disqualified a person from acting as judge where there existed "other particular circumstances ... that are liable to undermine confidence in his impartiality." It was a relevant consideration that the party complaining had asked the judge to stand down. Judge Matningsdal said:

Having considered a range of materials drawn from public discussion of a more or less political character, he repeated his general reservations and said:

The judge went on to consider the factor that one party was the state. His observations on this matter are more difficult to follow without a proper understanding of the Norwegian prosecution system. But it is clear that he had this factor in mind in proceeding to hold that acting judge Stoltz was incompetent. Although this case reflects the laws and practices of a very different judicial system, it appears that the considerations which had weight before the court are representative of a widely felt anxiety about temporary judicial appointments where there is a lack of reasonable safeguards of judicial independence or impartiality. There are similar observations elsewhere. Anxiety over the watering down of the permanent courts is understandable. But it is a feature of the judgment that, despite the objections so clearly expressed by the Court, the use of temporary judges was accepted as inevitable.

[45] If one accepts that there is a place for temporary appointments in Scotland, it may not always be or remain clear that the use of temporary judges is a response to unanticipated need. If the aggregate use of temporary resources exceeded by a substantial margin the time commitments of full time equivalents there could be a danger that the permanent establishment of the court would be reduced below the level required to meet the Convention criteria . Mr Bovey submitted that the response of the Executive to the decision in Starrs , by appointing up to sixteen additional permanent sheriffs, illustrated a general inclination to make temporary appointments, whenever competent, as a matter of preference, and thus to supplant the permanent judiciary.

[46] Hitherto, the number of judges appointed as members of the permanent judicial establishment of the Court of Session has been determined by the Executive, as holder of the public purse, rather than by the independent and transparent application of any ascertainable objective criteria to the data bearing on demand for judicial services. Since 1948 the maximum number of judges has been increased from time to time by Her Majesty by Order in Council under the Administration of Justice (Scotland) Act 1948 and subsequently the Court of Session Act 1988. No criteria for the exercise of that power are prescribed. It would be a reasonable presumption that the power has not been and would not be exercised at any particular time so as to increase the maximum number of judges above the anticipated demand for judicial services in the reasonably foreseeable future. But the primary legislation stipulates no criterion for determining the minimum complement of the permanent establishment. The maximum number specified in Section 1 of the 1988 Act may not be appointed. Moreover, a vacancy need not be filled: section 1(4) of the 1988 Act. The sub-section provides an indication that the permanent establishment of the court is intended to be related to the business of the court. But there has not been a comprehensive system or set of rules for determining the minimum size of the court at any time. This inevitably creates a tension between the court and the Executive given the basic constitutional principles of the separation of powers and the rule of law.

[47] The figures produced by the Lord Advocate in the present case would not support the view that there has hitherto been any material disturbance of the character of the court caused by the appointment of temporary judges. During 1999 temporary and retired judges made a significant contribution to the work of the court. But the data does not suggest that the use of temporary facilities has yet become a threat to the character of the court. It may, in the end, be a question of balance. Prediction of demand cannot be precise, and there may have to be room for judgment as to the proper level of permanent establishment that it is proper for society to maintain at public expense. In any event, there is, in my opinion, no basis for suggesting that all temporary appointments are in principle objectionable at common law or under the Convention. For present purposes, it is a question of the terms and conditions of appointment.

[48] There are some possible inconsistencies in the language of the 1990 Act. In relation to the High Court of Justiciary, paragraph 8 of schedule 4 provides that a person appointed to be a temporary judge "shall, by virtue of such appointment, be a temporary Lord Commissioner of Justiciary in Scotland". That is the only express qualification of paragraph 7, the general disapplication provision. Paragraph 6, by contrast, provides that a person appointed as a temporary judge "shall, while so acting, be treated for all purposes as, and accordingly may perform any of the functions of, a judge of the Court in which he is acting." Nothing was made of these differences. The language of the schedule was approached broadly. It provides for appointment for a specified period, coupled with provision for roll over on expiry of that period for the completion of current work. There is no provision for premature termination. As a matter of language, the preferred interpretation, in my opinion, is that what is envisaged is appointment for a fixed term which, once set by the terms of the appointment, may be extended but not prematurely terminated. That appears to me to be a perfectly intelligible provision for a relatively short term appointment.

[49] However, it is no longer appropriate to consider such issues solely in a domestic context. One must construe the provision in a way that is compatible with the Convention so far as is possible to do so. If there were doubt about the interpretation of the schedule, it would be a question of implication whether one found that the appointment was terminable or secure during its term. It would be inappropriate to arrive at an interpretation by implication that was inconsistent with the language of the express provisions. But, given that the requirements of the Convention are met where there is security, one would incline to an implication that was consistent with tenure if that were possible. In my opinion, that is the inevitable result if one has regard to the requirements of the Convention. Given that the intention is to create a judicial position, albeit of limited duration, to imply a power to terminate summarily would be to undermine such judicial characteristics as the appointment otherwise had.

[50] Most appointments under the 1990 Act have been for a three year period, repeated for further periods of three years, with minor modifications. But that has not been the invariable practice. One temporary judge was appointed for an initial period of three years followed by successive periods of one year, two years and then three years. Another was appointed for an initial period of one year followed by renewals for one and then two years. There is no substance in the contention that a three year term is in itself objectionable: compare Campbell & Fell; Langborger; Dupois, Zramek and Sutter v Switzerland Application no 8209/78 . Nor is it per se objectionable that the appointment was made by the Executive: Zand.

[51] The pursuer's argument on tenure was summed up by junior counsel as follows. There were deficiencies in four respects: there was no restraint on the executive's power to remove a temporary judge; there was no requirement to have or to give reasons for a removal; there were no statutory or other published guidelines to be followed relative to removal, and there was no right of appeal against a decision to remove a temporary judge. All of these propositions were predicated on the view that properly interpreted the 1990 Act failed to secure the temporary judge's position during the term of his appointment. In my view it is clear that an appointment under the 1990 Act, for a term of three years, carried security of tenure within that period. Such an appointment, with the security of tenure provided, is not incompatible with the state's Convention obligations. The Instrument establishing the E.C.H.R. itself provides for time limited appointments of three to nine years. That is not determinative of the question. Different factors apply in the domestic context. But taken with the observations in the case law, this provides a clear indication that a term of three years, with security of tenure, is wholly unobjectionable, taken as a free standing issue. If that view is correct, the security of tenure of the temporary judge is a significant factor in relation to the appearance of independence and impartiality presented. It also distinguished the position of the temporary judge from that of the temporary sheriff discussed in Starrs, and obviates the need for any detailed comparison with that case.

[52] The next chapter of argument depends on whether the temporary judge presented an appearance of independence and impartiality, and suitable guarantees against outside pressures. The approach of the Court and the Commission to the application of this test has been illustrated in some of the case already referred to. On their facts few of the cases could provide parallels for the present case. Examples of the application of the test in cases dealing with the lack of impartiality where a former prosecutor of the accused has sat as a member of the bench in disposing of a criminal case could not have a parallel here. In Scottish criminal practice a procurator fiscal who had dealt with the preparation of a criminal case would not thereafter sit as sheriff at trial. Nor would an advocate depute who had marked papers for solemn prosecution thereafter preside as judge at the trial of the accused. Cases such as Piersack v Belgium, and De Cubber v Belgium (1984) 7 E.H.H.R. 236 which deal with equivalent questions in Belgium have no direct bearing on the present case. But they serve as examples of the approach of the European Institutions.

[53] To a lesser extent, the cases dealing with military tribunals and military discipline provide similar background material, although, because of their specific contexts, they afford little direct assistance. Questions particular to military matters inevitably arise. In Engel & Others v The Netherlands (1976) 1 E.H.H.R. 647, for example, a question arose whether certain steps involved a criminal charge or merely disciplinary procedure: paragraph 82. The status of the tribunal had to take account of the role of military members. In Dupuis v Belgium (1988) 57 DR 196, there are observations which, out of the military context, might suggest that the duration of an appointment was of little significance in the context of Article 6(1): paragraph 1 pages 208-9. The four military members of the court were appointed for sessions of one month. But it appears clear that critical factors included the priority of judicial over military duty, independence of higher authority and secrecy of deliberation and decision, in a specifically military context.

[54] It is possible, within the Convention jurisprudence, to identify factors which in themselves would detract from the appearance of independence and impartiality required of a tribunal: paragraph [22] above. Liability to summary removal from office at the hand of the executive would threaten the judge's independence: Zand. In the same case, at paragraph 69, failure of a tribunal to meet the test of being "established by law" would have the same effect. Subordination to the executive in the performance of judicial duties would exclude the necessary appearance of independence and impartiality: Sramek. Again, in Piersack at paragraph 30, the appearance of impartiality was jeopardised where Mr Van de Walle, the president of the Brabant Assize Court of Appeal had been head of the relevant department of the Brussels' prosecutor's department which had been responsible for Mr Piersack's prosecution. De Cubber was disposed of on the same basis. In Campbell & Fell the Court examined each of the several grounds of challenge in turn. The case was decided against the United Kingdom under Article 6 (1) on the single ground that the decision of the Board of Visitors was not pronounced publicly: paragraph 89. An assertion of any universal positive, such as that a tribunal is independent and impartial, can always be defeated by proof of a material particular factor inconsistent with the generality. Such cases apart, it is a characteristic of the Convention jurisprudence that the appearance of independence and impartiality is assessed overall, having regard to the factors said to be inconsistent with that appearance and the guarantees of independence and impartiality together, rather than by an analytical approach which seeks out inconsistencies and proceeds to weigh against them the guarantees provided.

[55] This approach is in marked contrast to the Canadian approach. It is perhaps helpful to look more closely at the case of Lippe. In that case, Lamer C.J. expressed his approach to the circumstances of the case as follows, at pages 145-5:

He went on to consider separately whether there were safeguards in place which alleviated the risk of bias. This approach appears to adopt hypotheses unrelated or not necessarily related to the practical realities of the particular case and then to test the safeguards presented by the judicial system as counters to what has already been accepted. That is not the approach of the Court or Commission.

[56] In Engel, the conclusion, at paragraph 89, that the military court constituted an independent and impartial tribunal was based on the facts considered in paragraphs 30 and 68. It was an inference from the whole circumstances. The factors adverse to independence and impartiality were considered along with those favourable to that finding in arriving at a conclusion. The guarantees taken into account were part of the totality of facts and circumstances considered. See also Crociani at paragraphs 3 and 10.

[57] The emphasis on established fact, in considering the appearance of independence and impartiality, rather than hypothetical examples and possibilities is significant. In Zand, at paragraph 77, it was said that even if the possibility that the wide discretion given to the Minister "could facilitate the intrusion of extraneous circumstances" into the creation and location of labour courts, as was asserted, "the Commission considers that the mere possibility of this is not sufficient to warrant a finding that the Labour Courts' independence is generally affected. It would have to be shown by reference to particular cases that the practice of the authorities in these matters is as a whole unsatisfactory, or that at least the establishment of a particular court deciding a case was influenced by improper motives." In Dupuis, at page 208, reference was made to the failure of the applicant to indicate how the military courts failed in their duty to be impartial. In Langborger, the Court decided the case on the basis of the appearance presented by an actual relationships between the two lay members of the tribunal and professional associations having an interest in the outcome of the dispute. In Young & Others, at paragraph 53, it is stated:

It is essential to have regard to the concrete facts of the case and to avoid speculative possibilities which have not been shown to have substance in this case.

[58] The contention advanced on behalf of the pursuer is that the temporary judge did not satisfy the criteria of "an independent and impartial tribunal" within the meaning of and as required by Article 6 quite apart from tenure. In summary, senior counsel for the pursuer, Mr Bovey, contended that there were three reasons within the general "check list" in the Bryan judgment which indicated that Mr Coutts was not an independent and impartial tribunal for the purposes of Article 6.(1) in addition to the basic argument on tenure, namely:

The appointment in context presented an appearance of dependence on the Executive.

[59] In Starrs the Lord Justice Clerk said at page 228: "That there should be any temporal limit seems to me to raise a question as to whether the temporary sheriff presented the appearance of independence." In the present case, the pursuer's argument did not take this absolute form. It was rather contended that the combination of a short term appointment and the disapplication of the provisions protecting permanent judges had that effect. If, as the pursuer argued, the Lord Justice Clerk intended to say that no fixed term appointment could meet the Convention criteria, I would have to disagree. It is more likely that he made the statement in the context of a temporary sheriff's appointment, given the other characteristics that applied to it. The question in this case is whether, given the term of three years and the security of tenure provided within that period, there is any question over the appearance of independence and impartiality presented by the temporary judge.

[60] The pursuer's contention carefully avoids any personal criticism of Mr Coutts. If that had been the basis of the case, it would have been necessary for the pursuer to have produced evidence of personal bias: Pullar page 402, paragraph 30. The issue is whether his impartiality is objectively guaranteed. The criticisms advanced rely on the nature and legal incidents of the office of temporary judge when held by a member of the legal profession who remains in active public practice, and on a range of factors relating to remuneration, actual use of the temporary judge's services and other aspects of the terms and conditions of appointment. The test was said to be what the well-informed observer would think of the several factors identified in forming a view whether the temporary judge presented an appearance of independence and impartiality. If such an observer would doubt the independence or impartiality of the temporary judge, the focus would change to an examination of the legal safeguards which met the doubts.

[61] The pursuer criticised the character of the appointment. There were two factors indicating that the appointment had a probationary character: the possibility of renewal of the temporary appointment, and the possibility of appointment as a permanent judge. A well-informed observer would expect that as a matter course the temporary judge would be watched. The temporary judge himself must suspect that. The risk created pressures that ought not to exist in a judicial system. There was no reason why the temporary judge should not preside in cases of great importance to the executive. Even if the head of the court had a degree of practical control that was irrelevant: it was not part of the statutory scheme, and was not secured by law. The Convention jurisprudence looked for guarantees. The administrative role of the head of the court could not provide that. In any event, he might not always know of the real pressures on the temporary judge which related to his private practice. There was a colourable risk that the temporary judge would look over his shoulder at the possible response of the executive to his performance. It would be wrong to suggest that with a career path which was at the discretion of the executive could be thought to be immune from such a risk.

[62] Next, the pursuer pointed to the risk of "sidelining" in the case of a temporary appointment. The appointment carried no right to engagement, and no guarantee of any level of engagement in the course of the term. The temporary judge might simply not be used if he proved unacceptable to the executive to any extent. The "real world" observer would include those who dismissed the risk at one end of the spectrum, and those who simply did not know at the other. The well-informed observer would not dismiss the risk.

[63] The problems were aggravated in the case of a temporary judge who continued in practice. It was entirely inconsistent with the spirit of the land that counsel should be in a position to look down on adversaries at the bar from the bench one day, and the next be exchanging pleasantries with them as opponents in litigation. It was highly undesirable in an institutional sense. The problem had to be assessed in the real world, of a small bar, within which there was a small civil bar, and within that a small senior bar. Instructions were under the control of a few firms of solicitors who allocated work primarily to a small number of counsel. The problem became greater in such circumstances. The problem might be different in a large jurisdiction. It was not desirable that a temporary judge might conduct a case in which a party instructed a solicitor on whom the temporary judge depended for his livelihood in practice, or from whom he might hope to obtain instructions. It could not be asserted that the temporary judge would in all circumstances be beyond influence. It was inevitable that the temporary judge would have formed strong business connections with one of the firms of solicitors engaged in the litigation. There was an appearance of dependence and partiality, and that was enough. Further it was undesirable that the temporary judge might be called on to take decisions on issues on which he had already formed views and given advice to clients, or on which he might thereafter be called on to advise.

[64] The temporary judge had no financial security. He was paid a daily rate for work done only, based on the normal salary of the permanent judge, and might not be engaged. Further his remuneration was inferior to that of the permanent judge. He had no pension rights. He was not entitled to holiday pay. He was not entitled to sick pay.

[65] Well-informed observers had in fact drawn attention to the problems with such appointments. Counsel referred to observations of Lord Emslie quoted in the Glasgow Herald newspaper of 26 October 1993; an article by Professor Black in 1998 S.L.T. (News) 321; and Lord McCluskey's comments in the House of Lords during the debate on the 1990 Act.

[66] The defender and the Lord Advocate each placed emphasis on the need to consider the case in relation to the concrete facts. This was a purely private dispute in which the Executive had no interest. There was no suggestion that the temporary judge had any connection with either party. There was no complaint that the pursuer had not received a fair hearing. The procedure met a number of tests recognised in Convention jurisprudence as promoting independence and impartiality. The parties were represented by counsel well equipped by training and experience to identify and to react to any appearance of discrimination. The adversarial character of the proceedings, in open court, put the primary responsibility for the conduct of the proceedings on the parties' counsel rather than the judge. The temporary judge was legally qualified and very experienced in practice and in judicial capacities. He had taken a judicial oath. He was subject to the normal rules of declinature and professional ethics. The temporary judge had the legal privileges and immunities of a permanent judge. The hearing was governed by the ordinary, prescriptive rules of evidence and procedure. The evidence was recorded verbatim, and could be extended and made available to parties. The temporary judge was obliged to give a written reasoned judgment. He had to justify his conclusions. Apart from the temporary character of the appointment, the tribunal was in all respects and appearances fully integrated into the standard judicial structure. There was an appeal in fact and law from the temporary judge's decision. Each and all of these factors provided substantial reassurance to the well-informed observer. There was no question of lack or independence.

[67] The court in Starrs rejected the argument that temporary sheriffs lacked the appearance of impartiality by reason of remaining in practice: Lord Justice Clerk at page 230; Lord Reed at page 252. But it appears reasonably clear that the issue whether the temporary judge presents an appearance of independence and impartiality requires to be considered relative to the particular court and the temporary appointee in question. The factors to which the pursuer points are, in the Scottish context, very different from those identified in Canada, for example, and, within Scotland, may be different in the case of a temporary judge of the Court of Session from the case of the temporary sheriff. The temporary judge is a practising Queen's Counsel. He does not receive instructions from parties, but from solicitors. It could not be said that a temporary judge who practised as senior counsel: "could be pressured by clients to make a particular decision on an issue". Since the senior counsel is not in partnership, there could not be a conflict of interest: "if a lawyer of the judge's firm or a lawyer involved in a deal with the judge's firm appeared before the judge". Nor would a temporary judge ever be in a position in which: "the judge's firm was pursuing a particular government contract" exposing him to the risk that he: "may feel pressured to favour the government position in a decision". The context in which these heads of concern were elaborated was local to the Canadian situation.

[68] In an abstract sense, it is conceivable that there might be an appearance of a degree of lack of independence and impartiality if one of the parties to a case heard by a temporary judge was represented by solicitors who frequently instructed the judge as counsel. Superficially, a person who knew of the wider relationship might think that there could be a problem. The temporary judge would know the solicitors' methods and approach to work. He would have formed an opinion of their competence and ethical and other standards. The argument would be that he might be inclined to favour that firm's client if his view of the firm was favourable. Unlike the permanent judge, who may have had similar experience in the past, the temporary judge remains in practice, and it might be argued that, in the eyes of the well-informed observer who was not a member of any of the professional groups involved, no one would be expected to be wholly free from temptation in the absence of institutional safeguards. The suspicion is easily elaborated. In the same way, the temporary judge might be a person thought to have strong views on particular legal matters, reflecting his continuing practice, which would be to the disadvantage of one or other party. He might have written consistently on a point of law to a given effect that would pre-dispose him towards a particular decision. If it were a pure matter of law, he could be corrected on appeal like any other judge. But the view to which he might be inclined, having heard both sides of the argument, could reflect error in his former advice, and he could be tempted to express his former view for reasons of self interest. Again the suspicion is easy to develop. One might even say that the better informed the observer, the more readily he would be able to identify points of this kind. In my view this is not a legitimate approach on the European jurisprudence.

[69] In substance, most of the suspicions voiced by the pursuer bear on the subjective independence and impartiality of the temporary judge. If, for example, the temporary judge was in fact influenced by the presence of solicitors on whom he depended for work or was open to such influence, it would be because of a factual business connection already existing between them, or in contemplation. Similarly, if an opinion on a matter of law reflected a view to which the temporary judge was committed and which might expose him to a claim for damages, that would be because of an actual financial interest which the judge would be aware of. If these actual problems do not exist, it is pure speculation to erect them into factors for consideration on the hypothesis that some temporary judge at some time might be exposed to risk of prejudicing his independence and impartiality on some such ground. If the matter is to be considered at institutional level, in the sense of being a factor bearing on the inherent characteristics of temporary judges of the Scottish model tested as an independent and impartial tribunal, it is necessary on the European jurisprudence to have regard to the realities of the risks given the institutional safeguards which are in place as a matter of law.

[70] The temporary judge in Scotland is entitled to the immunities, privileges and powers of a Court of Session judge while he sits as such: 1990 Act schedule 4 paragraph 6. He has the fullest immunities in that capacity: Harvey v Dyce (1876) 4 R 265 and Russell v Dickson 1997 S.C. 269. Mr Bovey relied on the observations of Lord Justice Clerk Macdonald in McCreadie v Thomson 1907 S.C. 1176 at page 1182 in support of the proposition that the immunity of the temporary judge was less than comprehensive. But the comparison made in that case between the supreme court judge and the magistrate with delegated authority from a local administration is not relevant to this case. There is no material financial disadvantage. The temporary judge takes his place in the court with all of the powers of adjudication of a permanent judge. Usually, as in this case, parties are represented before him by qualified and experienced litigation lawyers, either members of the Bar or duly qualified solicitors with rights of audience in the Court of Session. He is subject to the same prescriptive rules of procedure and practice and evidence as a permanent judge. He must deliver judgment in public, in writing, with reasons. His decisions are subject to appeal in fact and law. What the temporary judge does is subject to scrutiny on appeal to a higher court competent to review his decisions in every material respect. The structural characteristics of the appointment, as it is realised in the work performed, are in all respects the same as those of a permanent judge. Exposure to review in ordinary course is of importance: compare Hakansson & Sturesson v Sweden (1990) 13 E.H.R.R. 1 at paragraph 63.

[71] So far as concerns matters collateral to the actual decision, but alleged to bear on its propriety, the first line of defence against abuse is the law of declinature. The Declinature Act 1594 c. 212 provides a prohibition against sitting in judgment on cases involving certain close relatives. If a judge should hear and dispose of a case in such circumstances, the remedy available is that the whole proceedings are null, and all orders pronounced by the judge are recalled: Ommanney v Smith (1851) 13 D 678. In that case the point was taken in the course of reclaiming. The court recalled the interlocutors in question without independent proceedings. Where the disqualifying interest is only discovered after decree had become final, the decree may be reduced: Sellar v The Highland Railway Company & Others 1918 S.C. 838, 1919 SC (HL) 19. There is a remedy, therefore, either in the course of the proceedings in which the irregularity occurs, or retrospectively when the proceedings have been completed. Declinature may be proponed by the judge ex proprio motu or by a party. The grounds of declinature include a pecuniary interest, however small if direct and personal, and whether as an individual or as trustee or as member of a company involved in the dispute. A non-pecuniary interest may disqualify if it is substantial, and such as might reasonably be calculated to create bias in the mind of the judge.

[72] The effectiveness of the legal remedies afforded by this chapter of law has been illustrated recently in three cases. The formal expression of the tests differs in English and Scots law. But the examples are relevant in both systems. In R v Bow Street Magistrates ex parte Pinochet Ugarte [1999] 1 All ER 577, a non-pecuniary interest was considered. A Law Lord hearing an appeal was a director of a charity closely associated with a party intervening in the appeal. It was not contended by Senator Pinochet that Lord Hoffmann was in fact biased. The allegation was that there was a real danger, or reasonable apprehension or suspicion that he might have been biased, applying the English test: page 586. The challenge succeeded. In Locabail (U.K.) Ltd v Bayfield Properties Ltd 17 November 1999 the Court examined the application of the English test to a range of cases heard together. The cases involved a deputy High Court Judge, a part time Recorder, a member of an Employment Appeal Tribunal and a member of a Betting and Licensing Committee. The court upheld the complaint in the case of the Recorder and ordered a re-trial. The law again provided an appropriate and effective remedy where the grounds of challenge were made out. In Hoekstra v. H.M.A 9 March 2000 the High Court of Justiciary overturned the decision of a differently constituted court on the ground that one member of the court had expressed views which indicated bias, much along the lines of the case of the Recorder in Locabail. These cases illustrate both the jealousy with which the courts protect their reputation for independence and impartiality where there is substance in an allegation of apparent bias and the effectiveness of the law in providing a remedy.

[73] A predisposition to support the case of a party represented by a solicitor with whom the temporary judge had business dealings, or from whom he hoped to receive future instructions, would be squarely within the scope of the prohibition against adjudicating in cases where the judge had an indirect pecuniary interest. The suspicion focused in the pursuer's argument is a suspicion that the temporary judge in such circumstances, who could hardly be ignorant of the connection and the potential for bias, would act illegally. In my opinion it would be inappropriate to proceed on such an assumption in the absence of concrete facts and circumstances supporting it. The 1990 Act provides in schedule 4 paragraph 11 that appointment as temporary judge is without prejudice to the temporary judge "continuing with any business or professional occupation not inconsistent with his acting as a judge". That provision provides, in my view, an important statutory safeguard of the public interest in the temporary judge's independence and impartiality. The continuing practice in which the temporary judge may engage must not be inconsistent with his judicial duties. The conflict envisaged by the pursuer could not exist without breach of the obligations inherent in this provision.

[74] The temporary judge swears the judicial oath in common form. In Starrs there are observations which might be thought to detract from the significance of the oath. But the judicial oath presents an important assurance to the litigant of the spirit in which the judge approaches the performance of his duties. It is the judge's acknowledgement of the obligation to do objective justice to all and of his ultimate liability to answer for the performance of that duty. It is to be seen in the context of the history of the office and the inheritance of the tradition of the court in which the judge serves. The oath underscores the obligation of the judge to act objectively in the due dispensation of justice. In Pullar page 405, para 40, the jurors' oath was given weight. The function of judge is more transparent than that of a jury, where secrecy of deliberation and decision has a high priority. If the oath of a juror has a high value when in the nature of the procedure it cannot be put to immediate test, it is difficult to understand how it can fail to be accorded the highest value in an open transparent procedure such as that applicable in ordinary civil litigation.

[75] There has been a long tradition in Scotland of practitioners providing judicial services, in the Convention sense, while remaining in practice. Statutory tribunals have often been, and are, established on the basis that the chair will be occupied on a part-time basis by a person who is legally qualified in some specified way. Many such tribunals deal with highly technical matters that are particularly suitable for a trained and experienced lawyer to deal with, but which could never require the full time services of a qualified person. In Sramek there was objection to the lawyer member of the tribunal. This was dismissed, at paragraph 40, both as speculative, and as a factor which would not in any event have been enough to call in question the independence and impartiality of the tribunal. Continuing in practice is not an absolute bar. Nor could it ever be in a tradition in which judges are appointed from among the members of the practising professions. The understanding may be different in traditions in which there is a hierarchical career judiciary. In that case experience is likely to be accumulated progressively over a long period of full time adjudication on cases of varying kinds. In United Kingdom jurisdictions the pattern is different. Experience of deciding issues in judicial or quasi-judicial capacities can only be obtained in the context of continuing practice. All judges share that experience. There is nothing peculiar about the position of the temporary judge.

[76] The pursuer argued, separately, and as a free-standing issue, that the liability of the temporary judge to "sidelining" affected the appearance of independence and impartiality. The contention was that, whatever formal security of tenure the temporary judge might have on a proper construction of the 1990 Act, it was of little significance because the Executive could ensure that he was not engaged for work. Of the two practising senior counsel appointed temporary judges, one had been used frequently, and had delivered judgments in a significant number of cases. The other had been used infrequently. There was a question how such a discrepancy could occur. Mr Bovey referred to Lord Prosser's comments in Starrs at pages 233-4, and to Rees v Crane [1994] 2 A.C. 173. It was alien to the nature of a Supreme Court judge that he should be shielded or prevented from making decisions, as distinct from being protected when he did make a decision. There was a legitimate doubt about the independence and impartiality of a temporary judge in this respect. Liability to sidelining could be seen as a factor inhibiting the free expression of opinion in case of public interest where adverse reaction on the part of the public or executive could have a bearing on the exercise of judgment.

[77] In my opinion this objection is misconceived. When the Executive appoints a temporary judge, the individual is made available to the head of the court for engagement on requisition. Since his remuneration must come from public funds, the authority of Parliament was required for expenditure to be incurred by use of the temporary judge. That is the purpose of paragraph 10 of schedule 4 to the 1990 Act. It is a misconception to construe this provision as conferring a discretion to pay remuneration to the individual. The provision satisfies the requirement that all expenditure from public funds requires Parliamentary authority. The individual temporary judge's right to payment accrues from his engagement on the ordinary presumption that a professional person is entitled to his proper remuneration for work done. The appointment of a person as temporary judge does not guarantee actual employment. The engagement of the temporary judge is a function of two factors: the demand for additional and temporary supply of judicial services and the availability of the temporary judge to perform such duties. If the temporary judge is not called on, he is not sidelined from any duties he has a right to perform. He is simply not used as a temporary judge, and continues in independent professional practice.

[78] In my opinion the pursuer's main contention fails. The temporary judge has security of tenure during his term of office. It is the independence and impartiality of a person in that position that has to be considered. None of the objections suggested has substance.

[77] In the circumstances, it may be strictly unnecessary to deal with the argument on waiver. However, I have read and entirely agree with Lord Coulsfield's observations on this topic.

[78] I agree that the case should be remitted back to the temporary judge to proceed to issue his decision.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clancy v Caird [2000] ScotCS 96 (4 April 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/96.html Cite as: [2000] ScotCS 96, 2000 SCLR 526

Scottish Court of Session Decisions