Scottish High Court of Justiciary Decisons

DOUGLAS WILLIAM GIBBS v. PROCURATOR FISCAL, LINLITHGOW [1999] ScotHC 247 (4th December, 1999)

I have read the opinion to be delivered by Lord Sutherland and agree with it and indeed with the provisional opinion on the point indicated by Lord Prosser in Starrs and Chalmers v. Procurator Fiscal of Linlithgow 11 November 1999 unreported. Because of the importance of the matter I add some general observations.

Like Lord Sutherland I attach importance to the fact that the Sheriff Courts (Scotland) Act 1971 ("the Act") was passed in order to reorganise the administration of the sheriff courts in the light of the report of the committee chaired by Lord Justice Clerk Grant. The Act confers a number of functions on the Secretary of State, including the appointment of temporary sheriffs under Section 11. By Section 1 all of the functions were conferred on the Secretary of State for the purpose of carrying out his duty to secure the efficient organisation and administration of the sheriff courts - a duty which thus underpins the whole of Part I of the Act. Since the Secretary of State's duty and functions apply throughout Scotland they transcend the not dissimilar duty and functions conferred on each of the Sheriffs Principal in respect of his Sheriffdom under Sections 15 to 17 of the Act. Indeed, in Section 18 the Secretary of State is given the ultimate power himself to discharge the functions of a Sheriff Principal where the Secretary of State considers that the Sheriff Principal's exercise of any of the functions or failure to exercise any of the functions is prejudicial to the speedy and efficient disposal of business in the courts of the sheriffdom, or to the efficient organisation or administration of the sheriff courts generally, or is otherwise against the interests of the public.

The clear implication of the legislation is that, although Scotland remains divided up into distinct sheriffdoms each under a Sheriff Principal, those sheriffdoms are to be seen as units in a system of sheriff courts stretching throughout Scotland and over which the Secretary of State is to have an administrative oversight, coupled with a duty to make the organisation and administration of the sheriff courts efficient. The duty and functions conferred on the Secretary of State passed to the Scottish Ministers under Section 53(1) and (2)(c) of the Scotland Act 1998 on 1 July 1999. But all the appointments of temporary sheriffs were made by the Secretary of State before that date.

The appointment of temporary sheriffs under Section 11 of the Act is one of the functions which were conferred on the Secretary of State for the purpose of carrying out his duty to make the organisation and administration of the sheriff courts efficient. It therefore appears to me that the section should be construed in a way which will promote rather than frustrate that aim. In particular, when that aim is kept in mind, I see little reason to accept the submission advanced by Mr. Davidson, Q.C., for the appellant and to adopt an interpretation of Section 11 which would allow the Secretary of State to make an appointment only when some particular emergency was identified. For instance, Mr. Davidson said that, every time a court overran and did not complete its work somewhere in Scotland, the Secretary of State would then and there have to make a fresh appointment if he wished a temporary sheriff to go to the sheriff court to take over the other urgent business of the court the following morning. Even though the Secretary of State and his officials might know from experience that this kind of demand would arise frequently, they could not have anyone appointed as a temporary sheriff under Section 11(2)(a) - (c) to whom the Secretary of State could give a direction under Section 9 to go to the appropriate sheriff court as and when required. An interpretation which circumscribed the Secretary of State's power under Section 11 in this way would be more likely, I conceive, to create chaos than to promote the efficient administration of the courts.

Counsel for the appellant made much, as had the complainers in Starrs and Chalmers, of the large number of persons appointed as temporary sheriffs. For my part, however, I have some difficulty in seeing how the fact that the Secretary of State made a large number of appointments could in itself make any individual appointment ultra vires if it otherwise actually fell within the terms of the power conferred under Section 11. To some extent at least, the criticism of the number of appointments made under Section 11 seemed to me to be in reality an oblique criticism of, or challenge to, the Secretary of State's decision as to the number of permanent sheriffs to be prescribed under Section 14(1) - on the basis that fewer temporary appointments would be required if the correct number of permanent sheriffs were appointed. Again, I observe that the power under Section 14(1) was conferred on the Secretary of State for the purpose of carrying out his organisational duty under Section 1. Until devolution, the power of the Secretary of State could be exercised only with the approval of the Treasury. After devolution the Scottish Ministers may exercise the power without consulting the Treasury (Section 55 of the Scotland Act 1998), but doubtless, as the Lord Advocate observed, in practice the views of the Finance Minister in the Scottish Executive would have some bearing on the numbers specified by the Scottish Ministers. The Lord Advocate rightly observed that not every increase in work would necessarily justify an increase in the number of permanent sheriffs since - despite recent experience - the increase might prove to be only ephemeral. A balance might have to be struck. In any event, no direct challenge has been made in the present case to the exercise of the power under Section 14(1).

As the Lord Advocate pointed out, however, any increase in the number of permanent sheriffs because of an increased workload in the courts is liable to bring with it an increase in the number of occasions when a permanent sheriff is ill or on holiday or is prevented from dealing with business set down for a particular day because, for example, other business has overrun. Somewhat paradoxically, therefore, an increase in the number of permanent sheriffs may increase the number of occasions when cover is required. That cover can be provided in various ways - either by using a sheriff from another sheriffdom (under Section 10) or by appointing and deploying a temporary sheriff (under Section 11) or by the Sheriff Principal making special provision for another sheriff to take on the work on a temporary basis (under Section 16(1)(b)). Again, since the occurrence of such contingencies from time to time throughout the sheriffdoms of Scotland is predictable, it would appear to be consistent with the requirements of Section 1 for the Secretary of State to be able to make appropriate general arrangements in advance. Mr. Davidson did not suggest that such general arrangements would be ultra vires under Section 10(2)(c) and, if that is so, it is hard to see why they should be beyond the powers granted to the Secretary of State under the similarly worded provision of Section 11(2)(c). This suggests that Mr. Davidson's real complaint was that the temporary sheriffs appointed for the purposes of Section 11(2)(c) lacked security of tenure because Section 11(4) - a point which was not, however, advanced as a reason for saying that their appointment was ultra vires. Nor indeed could it have been advanced in that way, since Section 3 of the Human Rights Act 1998 is not yet in force.

Indeed the argument that appointments under Section 11(2)(c) could be made only for specific identified emergencies did not sit altogether easily with the criticism that such appointments were incompatible with the Human Rights Convention because they were not permanent. Be that as it may, it appears to me that those appointed under Section 11 are described as "temporary sheriffs" because their appointments are not permanent and are liable to recall under Section 11(4). On the other hand I do not detect any underlying intention that such appointments, though described as temporary, should as a rule be for a short time only. On the contrary, they are to subsist until recalled by the Secretary of State - which suggests that, unless he intervenes, they will continue indefinitely. The idea that such appointments may well last a long time and need not be for a specific emergency only is reinforced by subsections (4A) and (4B) of Section 11 which envisage that the appointment of a temporary sheriff may continue up until the retirement age of 70 and may thereafter be renewed, either generally or for a particular purpose, for successive periods of up to a year until the holder of the appointment reaches the age of 75. See Section 26(4) - (6) of the Judicial Pensions and Retirement Act 1993.

Unless the contrary intention appears, references to "a sheriff" in the Act include references to temporary sheriffs (Section 45(1)(b)). Given the terms of Section 10(5) and Section 16(3), it is clear that the powers of the Secretary of State and the Sheriffs Principal under those sections apply to temporary sheriffs. In other words, temporary sheriffs are treated for these purposes like permanent sheriffs. This means, for instance, that a temporary sheriff, even if appointed specifically under Section 11(2)(a) for one sheriffdom to cover the absence of a permanent sheriff due to illness, could be directed by the Secretary of State under Section 10(2)(c) to perform the duties of a sheriff in another sheriffdom, where this appeared expedient to the Secretary of State to avoid delays in that other sheriffdom. There is no limit to the number of times this power can be exercised or to the number of sheriffdoms in respect of which it can be exercised. And indeed the well-established system of "floating" permanent sheriffs rests on the exercise of this power on repeated occasions. Similarly, under Section 16(1)(b) the Sheriff Principal can direct a temporary sheriff to dispose of business in addition to that which he required to undertake by virtue of his original appointment. These provisions also tend to undermine the appellant's argument that there is something objectionable in appointments being made under Section 11(2)(c) in such a way that the appointee can be directed to perform the duties of the office as and where it may be expedient in order to secure the efficient organisation and administration of the sheriff courts throughout Scotland.

After we had been immersed for some hours in the technicalities of the wording of various sections of the Act, the Lord Advocate administered a welcome balm in the form of a citation of D.1.14.3, Ulpian 38 ad Sabinum. In that text reference is made to the situation where a runaway slave, Barbarius Philippus, was designated as a praetor, probably in the first century B.C. In discussing that example, Ulpian appears to have been concerned with possible objections to the validity of a praetor's appointment of a tutor - in this case by reason of some flaw in the appointment of the praetor himself. Although it has been suggested that the text may have been partially rewritten later, in its present form, at least, it suggests that Ulpian would have regarded the decrees of a slave appointed to be a praetor as valid, even though, of course, the actual appointment of the slave would itself have been invalid. Under reference to that authority and to the more recent work of Wade and Forsyth, Administrative Law (7th Edition), pp. 326 - 328, the Lord Advocate argued that, even if the appointment of the temporary sheriff in this case had been invalid, she should be regarded as having been a de facto judge and the law should treat her acts as valid. In view of the decision which I have reached on the main argument, it is unnecessary to deal with this submission, beyond saying that the argument is one of some general importance upon which I reserve my opinion.

The appellant appeared on summary complaint on 12 March 1999. He pled not guilty and the case was adjourned for trial on 17 June 1999 with an intermediate diet on 19 May. On 19 May he failed to appear and warrant was granted for his apprehension. He appeared on 5 July when the case was adjourned for trial on 27 October with an intermediate diet on 11 October. On 11 October the appellant again failed to appear. The temporary sheriff granted warrant to apprehend the appellant. The minute on that date further reads:

On 29 October the appellant appeared before a different sheriff and a diet of debate was fixed for 17 November on the plea to the competency. At the diet of debate it appeared to the sheriff that there were two parts to the argument presented to him. In the first place the argument was that the appointment of the temporary sheriff was ultra vires of the Secretary of State. The second point was that as the temporary sheriff would have no power to try the appellant, based on the decision in the case of Starrs and Chalmers v. Procurator Fiscal, Linlithgow, equally she had no power to grant warrant for his apprehension. The second point was considered by the sheriff to raise a devolution issue, but the necessary procedure for such an issue to be raised had not been gone through. The sheriff was prepared to allow the devolution issue to be raised late and fixed a further diet for consideration of that issue after the necessary intimation procedure had been complied with. He did, however, deal with the issue of ultra vires and refused the appellant's plea on that ground. It is against that refusal that the present appeal is taken.

The historical background to the appointment of temporary sheriffs starts with section 16 of the Sheriff Courts (Scotland) Act 1907, which provided that

Section 4(2) of the Administration of Justice (Scotland) Act 1948 provided that

Following the report of the Grant Committee, substantial changes to the administration of the Sheriff Court were made by the Sheriff Courts (Scotland) Act 1971. Section 1 provides:

Section 9 provides that for the purpose of securing the efficient organisation and administration of the Sheriff Courts, and in particular the speedy and efficient disposal of business in those courts, the Secretary of State may give such directions of an administrative nature as appear to him to be necessary or expedient. Section 10(2) provides:

Section 11, with which this case is primarily concerned, in relation to sheriffs rather than sheriffs principal, provides

Section 16 deals with the functions of the sheriff principal and provides inter alia by subsection (1)(b) that where any of the sheriffs appointed for the sheriffdom is by reason of illness or otherwise unable to perform his duties as sheriff, or a vacancy occurs in the office of sheriff in the sheriffdom, or for any other reason it appears to the sheriff principal expedient so to do in order to avoid delay in the administration of justice in the sheriffdom, he may make special provision of a temporary nature for the disposal of any part of the said business, either by the sheriff principal or by any of the sheriffs appointed for the sheriffdom in addition to or in place of the sheriff principal's or, as the case may be, that sheriff's own duties.

Counsel for the appellant submitted that on a true construction of section 11 of the 1971 Act the temporary sheriff was not lawfully appointed. Accordingly it followed that the grant of the warrant for apprehension was unlawful and the diet of 29 October resulting from the execution of the warrant and remand thereon was also unlawful, and accordingly the instance fell on 27 October, which was the original trial diet. In relation to the construction of section 11 he submitted that section 11(2)(c) was the relevant provision. He pointed to the fact that section 11 extends beyond illness and vacancy but it does relate specifically to the particular Sheriffdom. The issue was the width of the power granted under section 11(2)(c). Is this power untrammelled or should it be construed eiusdem generis with illness and vacancy? He accepted that the word "other" must be given some content but submitted that the true position was that it was only in relation to temporary emergencies that temporary sheriffs could be appointed. He said that the issue of vires arises out of the nature of the use of temporary sheriffs, and that in turn arises out of the Crown submissions in the case of Starrs and Chalmers. In that case the Lord Justice Clerk set out the system under which temporary sheriffs are now appointed. He said that the Solicitor General, who appeared for the Crown, accepted that in practice the system was not one of temporary appointments, other than in the sense that the appointments were formally for a period of one year and lacked security of tenure, but was one of part-time appointments which were intended to be long-term. The issue in Starrs and Chalmers was whether or not a temporary sheriff could constitute an impartial and independent tribunal, bearing in mind, in particular, the provisions of section 11(4) which meant that he had no security of tenure and his appointment could be recalled at any time by the Secretary of State. The matter of the construction of section 11(2) arose out of an argument that a restricted scope could be given to the power to recall an appointment under section 11(4) because section 11(2) was intended to confer the power to appoint a temporary sheriff in order to meet a temporary need. The Lord Justice Clerk said:

The Lord Justice Clerk did not find it necessary, however, to express a view as to whether appointment of temporary sheriffs is ultra vires of section 11(2). Lord Reed said:

Lord Reed added that it would not be appropriate to discuss the matter in greater detail far less to express a concluded view upon it in the absence of submissions on these points by counsel. Lord Prosser said, in relation to section 11, that neither the history of non-permanent appointments nor the more immediate background to the passing of these provisions seemed to him to suggest that Parliament intended to give the Secretary of State a wide discretion to appoint temporary sheriffs in the absence of a specially identified immediate need in a particular Sheriffdom, but he found it difficult to regard the provision as requiring construction and was inclined to see the actual words used as conferring a much wider power than was necessary to meet what appear to have been the prior intentions. Having regard to these observations in Starrs and Chalmers counsel for the appellant submitted that the appropriate construction of section 11(2)(c) was indeed a restrictive one and that appointment in terms of that section should be confined to matters relating to an immediate temporary need such as were to be found in sub-subsections (a) and (b). Counsel submitted that an aid to interpretation of section 11 was consideration of cases such as Mackay and Esslemont v. Lord Advocate 1937 SC 860; T., Petitioner 1997 S.L.T. 724 and R. v. Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696. The principle that could be drawn from these cases was that if any legislation is found to be ambiguous, Parliament must be presumed to have legislated in conformity with the Convention rather than in conflict with it. Counsel accepted, however, that if there was no ambiguity in the wording, the only relevance of these authorities would be in relation to any submission that the Secretary of State must operate the provision within Convention principles. He submitted that when there was no tenure of office for temporary sheriffs the only way in which section 11(2) could properly be construed within Convention principles would be to construe it as requiring appointments only in respect of temporary emergencies, and not by making appointments on a long-term basis without identifying particular needs on a particular occasion. He accepted that if temporary sheriffs did have security of tenure then section 11(2)(c), by itself, would not contravene any Convention principle. His submission was that by making long-term so-called temporary appointments what in fact the Secretary of State was doing is making a constitutional innovation by diluting the permanent sheriffs by 25%. If this was to be done then it should be done quite expressly and not by a side wind.

In reply the Lord Advocate gave some history of the background to the appointment of temporary sheriffs. He said that since 1977 there has been a pool of temporary sheriffs appointed on an annual basis, and from that pool temporary sheriffs have been directed to particular Sheriffdoms as the need arises. It appears that even from 1971 temporary commissions had named in them all the Sheriffdoms in Scotland. What happens in practice is that the sheriff clerk, acting under delegated powers from the sheriff principal, identifies the need for assistance because for some reason the particular workload is too great to be dealt with by the available permanent sheriffs. He then contacts the Scottish Executive Justice Department (formerly Scottish Courts Administration) and asks for temporary assistance. The sheriff clerk has to give a reason why this temporary assistance is required. Some of these matters he knows in advance, for example, sheriffs going on leave or pending vacancies, but there may be emergencies arising at the last minute. Thus, for example, if a case in which the permanent sheriff is engaged over-spills it will be necessary to have someone to take his place on the following day to deal with urgent business. The Lord Advocate produced a breakdown of the reasons for the use of temporary sheriffs for the last year. Temporary sheriffs were used on a total of 6,224 days: 1,725 days were attributable to the fact that the permanent sheriff was on leave; 498 days attributable to sick leave; 367 days attributable to the fact that sheriffs were sitting as temporary High Court judges; 533 days because of vacancies; 1,172 days because the permanent sheriff was unavailable for various reasons such as the parole board, children's reporter administration, lands tribunal, writing days, attendance at meetings and conferences. This left 1,929 days under the heading of "Additional Business". The Lord Advocate explained that as far as this heading is concerned, it covered such matters as the emergency need for a sheriff to cover for the permanent sheriff whose case had over-spilled, and also the position where the sheriff principal had observed a backlog building up in a particular type of business and considered it necessary to have temporary assistance to clear that backlog because he was unable to reorganise the business with his own resources. Apart therefore from the figure of 1,929 days for additional business, the remaining reasons for temporary sheriffs being used were covered by 11(2)(a) or (b) and this represented a total of 70% of the days occupied by temporary sheriffs. The remaining 30% were dealt with under 11(2)(c), because it appeared that it was necessary to avoid delay in the administration of justice that a temporary sheriff should sit. The Lord Advocate said that the reason he referred to the use of temporary sheriffs is because the appointment of a temporary sheriff is to act and it is the need for acting that matters. An individual temporary sheriff is only appointed to act when he is sent to a particular Sheriffdom at a particular time. Accordingly, the appointment of a temporary sheriff could be seen not as in effect a long-term temporary appointment, but as a series of appointments to act on particular occasions for particular purposes.

The Lord Advocate then submitted that the Secretary of State has a duty under section 1 of the Act to ensure the efficient organisation of business in the Sheriff Courts and he is given powers to enable him to perform that duty. Section 11(2)(a), (b) and (c) is in the same terms as regards the reasons for the Secretary of State appointing a temporary sheriff as the terms of section 10(2)(a), (b) and (c) which gives the justification for the Secretary of State directing a sheriff to perform duties in a different Sheriffdom. It is not suggested that the Secretary of State's power to give directions under section 10 is in any way ultra vires if he directs a sheriff to sit in a different Sheriffdom for any reason which he thinks expedient to avoid delay in the administration of justice. When the 1971 Act was going through Parliament, in the debate in the House of Lords Lord Wheatley suggested the concept of floating sheriffs, and it is under section 10 that floating sheriffs receive their authority to act in all Sheriffdoms. Floating sheriffs are of course permanent sheriffs and there is no question about their security of tenure. The Lord Advocate submitted that it could not be argued that the Secretary of State acts ultra vires in appointing a floating sheriff to any Sheriffdom, and if that be so then his reason for doing so under 10(2)(c) must be the same reason as he appoints temporary sheriffs under 11(2)(c). It is important to notice that all that the court is concerned with in this case is the question of vires, and this should be divorced from any question of security of tenure which was the matter which was decided against the Crown in Starrs and Chalmers. The issue in the present case is one of pure statutory construction and does not raise any devolution issue. Accordingly the Lord Advocate submitted that section 11(2)(c) was wide enough to empower the Secretary of State to make appointments on the basis which he does and that he is not acting in any way ultra vires, having regard in particular to the fact that the reason for the need for temporary assistance has to be identified by the sheriff clerk before the Secretary of State will send any temporary sheriff to that Sheriffdom.

In considering the validity of these arguments I should say at the outset that I cannot accept the Lord Advocate's contention that temporary sheriffs are only appointed when they are actually sent to a particular Sheriffdom on a particular occasion. The commission issued to a temporary sheriff is in the following terms:

The Sheriffdoms undernoted are in fact all the Sheriffdoms in Scotland. In my view, from the terms of this commission, it is quite clear that the appointment of a temporary sheriff is to date from the date of the commission itself and it is not in any way dependent on when or where he may be required to sit. The appointment dates from the date of the commission even though the use made of the services of the temporary sheriff may vary from time to time.

In my opinion what is crucial in this case is the wording of section 11(2)(c). Looked at in isolation the wording of that subsection is wide enough to cover the appointment of temporary sheriffs where, for any reason, it appears expedient to the Secretary of State to do so in order to avoid delay in the administration of justice, bearing in mind his responsibility under section 1. The only question, therefore, is whether this apparently clear meaning should be given some restricted construction. The basis of giving it a restricted construction is said to be that historically temporary sheriffs were appointed only as cover for sheriffs who were absent through illness or while a vacancy was unfilled, that these historical provisions were re-enacted in sections 11(2)(a) and (b) and that accordingly the wording in (c) should be construed eiusdem generis. What has to be borne in mind, however, is that section 11(2)(c) was enacted as part of a fairly major reform of the workings of the Sheriff Court. Further the wording of 11(2)(c) is replicated in section 10(2)(c) and it cannot realistically be suggested that permanent sheriffs appointed as floating sheriffs cannot competently be directed to any Sheriffdom where they may be required for any reason. Similarly in section 16(1)(b) the sheriff principal is given certain powers to make special provision for the disposal of business for the same three reasons. It is clear from all of these provisions that the purpose of the legislation is to provide enabling powers in order to avoid delay in the administration of justice. Indeed, it is difficult to say what is the genus which is constituted by 11(2)(a) and (b) other than that they are examples of situations where delay in the administration of justice may be caused by reason of the permanent sheriff not being available to deal with the workload. I do not understand it to be suggested that the Secretary of State would be acting ultra vires if he issued a temporary commission to a temporary sheriff, on each occasion when a temporary sheriff was required, to avoid delay in the administration of justice in any Sheriffdom. I cannot see any valid reason why it should be suggested that there should be anything ultra vires in issuing temporary commissions in advance to qualified persons and then using their services as required to avoid delay in the administration of justice.

I can understand the argument that the Secretary of State would be acting ultra vires if he chose to make use of section 11(2)(c) to replace permanent sheriffs with temporary sheriffs as a matter of policy and without regard to the particular circumstances in which temporary sheriffs were used. This indeed appears to have been the consideration which gave rise to the doubts about vires expressed by the Lord Justice Clerk and Lord Reed in Starrs and Chalmers. Thus the Lord Justice Clerk refers to temporary sheriffs as representing a permanent supplement to the shrieval bench. Lord Reed also refers to temporary sheriffs as being available to supplement the work of the permanent sheriffs to the extent of performing one quarter of the entire work of the Sheriff Court, and says that it appears to him that this is a constitutional innovation. As is clear, however, from the opinions in Starrs and Chalmers, the details of the reasons for the increasing use of temporary sheriffs were not before the court, nor does it appear to have been made clear to the court that a sheriff clerk, when asking for the services of a temporary sheriff, had to explain the reason why those services were required. The bald figure of 25% of the work of the Sheriff Court being done by temporary sheriffs may seem alarming, but with the benefit of the explanation provided by the Lord Advocate in the present case it is apparent that at least 70% of the requirements were attributable to reasons covered by section 11(2)(a) or (b) and the remaining 30% were covered by reasons such as the overrunning of cases or the need to clear a backlog identified by the sheriff principal which could not be dealt with by the powers vested in him. Accordingly, there is no reason to suppose that the Secretary of State is misusing his powers or attempting to introduce what Lord Reed called a constitutional innovation.

The argument that 11(2)(a) and (b) are unnecessary as they would in any event be covered by (c) does not appear to me to be of any assistance, as even on the restricted construction desiderated by the appellant they would still be covered by (c). On any view of the construction of (c), therefore, (a) and (b) would appear to be otiose but they may be there simply for historical reasons. As I have already said, I do not consider that they constitute any genus from which (c) can be construed in accordance with the eiusdem generis rule.

The argument that the subsection must be construed in accordance with Convention requirements does not appear to me to be relevant when considering, as in this case, the pure question of vires. If anything, the requirement to construe in the spirit of the Convention tends to support the view that the Secretary of State is acting intra vires in appointing temporary sheriffs on a long-term commission rather than on a case by case basis, as this will accord with the requirement identified in Starrs that there must be security of tenure for sheriffs appointed even to act on a temporary basis.

Accordingly, in my opinion, if the question is asked "Is the subsection apt to cover the appointment of temporary sheriffs on a long-term commission?" the answer must be "Yes". The next question is whether the Secretary of State has acted within the terms of the subsection in making the appointments which he has. Accepting, for the purposes of the present argument, that the Secretary of State would have been acting ultra vires if he made use of this subsection to supplant permanent sheriffs and replace them with temporary sheriffs, there is, in my opinion, nothing to show that the Secretary of State was doing anything of the sort. The system that he operated and which is now being operated by the Scottish Ministers is to require valid reasons to be given by the sheriff clerk before a request for temporary assistance will be granted. Accordingly, the use which is being made of temporary sheriffs is not to replace permanent sheriffs but is to provide additional assistance in particular Sheriffdoms if a necessity is identified for such assistance to avoid delay in the administration of justice. Once that use is identified and can be justified, I consider that the Secretary of State was acting within his powers by issuing commissions to a pool of temporary sheriffs who will, from time to time, be providing that assistance, rather than by having to issue a commission to each temporary sheriff on each occasion when his services may be required. For these reasons I am satisfied that there is no substance in the appellant's arguments and this appeal must be refused.

For the sake of completeness I should add that the Lord Advocate argued that even if the Secretary of State was acting ultra vires, nevertheless the temporary sheriffs who were appointed held a commission ex facie giving them powers to sit and they were requested to act in that Sheriffdom and did so. At the time that trials were being conducted there was no ex facie invalidity. He referred to Wade on Administrative Law 7th edition, page 326 where it is said that if there is some unknown flaw in the appointment or authority of some officer or judge, the acts of the officer or judge may be held to be valid in law, even though his own appointment is invalid and in truth he has no legal power at all. The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so. In such a case he is called a judge de facto as opposed to a judge de jure. As, however, this matter was not argued fully before us and in particular some of the authorities on which the passage in Wade is based were not available, I would prefer to reserve my opinion on this particular matter.

I agree this appeal must be refused for the reasons given by your Lordships.

I only wish to add that for my part the final submission of the Lord Advocate to the effect that the acts of Temporary Sheriffs, even if these appointments were defective for whatever reason, could still be valid, appears to raise an important issue which if sustained might have important practical consequences. At first sight the argument seems to me to be not without substance but like your Lordships I would prefer to reserve my opinion on its soundness in case it should arise on a future occasion when no doubt it will be more comprehensively argued.