Suspended part-time sheriff loses challenges against Scottish Ministers’ decision to stop funding his legal representation

About this case:

• Citation:
  [2022] CSOH 81
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Drummond

Petitioner John Halley was suspended from office after comments he made about another member of the judiciary were considered to be defamatory. He argued on petition that he had a legitimate expectation that funding for his challenge would be maintained, and that any withdrawal of funding was incompatible with his ECHR right of access to the courts.

The petition was considered by Lady Drummond in the Outer House of the Court of Session. O’Neill KC appeared for the petitioner and McIlvride KC for the Scottish Ministers.

Enforceable expectation

On 25 July 2019, the Lord President of the Court of Session wrote to the petitioner to explain that it had come to his attention that he had made public comments which were highly critical and on the face of it defamatory of another member of the judiciary. Accordingly, he suspended the petitioner from the office of part-time sheriff under section 34(1) of the Judiciary and Courts (Scotland) Act 2008 and later requested that a tribunal be convened to investigate whether the petitioner was unfit to hold office.

By letter dated 26 April 2021, the tribunal advised the petitioner that it had decided to proceed to a hearing and that it would meet the cost of his legal representation and approve payment for senior counsel. Prior to the hearing, a sheriff member of the tribunal retired from office and another sheriff was appointed to take his place. At a preliminary hearing the petitioner argued that tribunal membership could not be changed once the initial appointment had been made, but this argument was rejected.

The petitioner thereafter lodged a petition for judicial review contending that the tribunal had misdirected itself on the points raised in the preliminary hearing. He sought confirmation that the respondent would meet his expenses in the substantive petition. However, the respondents refused to meet those expenses, stating by letter of 6 April 2022 that there had been no agreement to pay the expenses for a judicial review challenge to the process.

It was submitted for the petitioner that there was an enforceable legitimate expectation that funding would continue to be provided by the respondents to allow the lawfulness of the tribunal’s decision to be authoritatively determined. Given that the respondents accepted they were required to continue to fund the original proceedings before the tribunal, it necessarily follows that funding should be provided to allow an authoritative decision on the lawfulness of the Tribunal’s decision to be made by an independent court with full jurisdiction.

No obligation

In her decision, Lady Drummond observed: “Whilst there is an obligation to pay expenses, there is also a discretion conferred on the respondents to pay only those expenses which they consider to be reasonably required to enable the Tribunal to carry out its functions. The Tribunal’s functions are to investigate and report on whether a judicial office holder is unfit to hold office. The petitioner’s challenge by judicial review is not part of any proceedings before the Tribunal. It is extraneous and separate from the Tribunal proceedings.”

She continued: “Until such times as a court of law declares otherwise, the Tribunal’s decisions are valid and it remains free to perform its functions. Any argument in any petition for judicial review to the contrary are of no effect unless upheld by a court of law. The fact that the Tribunal recognised that its decisions may be challenged in a petition for judicial review was not an acceptance that such a challenge is part of the Tribunal proceedings or requires to be made to enable it to carry out its functions.”

Addressing whether it would be incompatible with the petitioner’s ECHR rights, Lady Drummond said: “The costs of the substantive petition are not prohibitively expensive and it is not unreasonable for the petitioner to proceed with the judicial review without funding from the respondents. The respondents’ refusal to spend limited public funds on meeting the costs of the substantive petition is in all the circumstances proportionate. The petitioner has not established that it is indispensable that the respondents fund the judicial review for him to be secured effective access to the Court and an effective remedy.”

She concluded: “The denial of funding for legal representation for the substantive petition does not constitute a limitation on the petitioner’s right of access to the Court which undermines the very core of that right and makes it practically impossible or excessively difficult for him to exercise his rights. Accordingly, there is no obligation for the respondents to provide funding for his judicial review on a reading down of section 23(6) of the Courts Reform (Scotland) Act 2014 in accordance with EU law, the Convention or otherwise.”

Lady Drummond therefore repelled the petitioner’s plea-in-law in respect of further funding for the judicial review petition.