Scottish Sheriff Court Decisions

Paisley 30 May 2006 Sheriff Principal Kerr

Act: Mr Spence,

Alt: Ms Durkin,

The Sheriff Principal, having heard parties' procurators on Councillor Vassie's Motion for his appeal to be allowed to proceed although late against the suspension imposed on 6 February 2006 by the Standards Commission for Scotland, Refuses said motion and Finds Councillor Vassie liable to the Standards Commission for Scotland in the expenses of and incidental to the said motion.

BA Kerr

NOTE:

On 6 February 2006 the Standards Commission for Scotland imposed on Councillor Vassie a twelve-month suspension under and in terms of section 19(1)(c) of the Ethical Standards in Public Life etc (Scotland) Act 2000. Councillor Vassie seeks to appeal to the Sheriff Principal under section 22(1)(b) of the Act on the ground that the sanction so imposed was excessive. The statute by section 22(4) allowed him 21 days to do so from 6 February 2006. On 11 May 2006 a motion was lodged on Councillor Vassie's behalf asking the Sheriff Principal to allow his appeal to proceed although late. The motion was duly intimated to the Standards Commission who appeared in opposition to it at today's hearing.

For Councillor Vassie I was invited by Mr Spence to exercise in his favour the discretion conferred by Rule 2.3 and/or Rule 2.6(3) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 and relieve Councillor Vassie of the consequences of his failure to comply with the twenty-one-day time limit. Although however the appeal if allowed to proceed would take the form of a summary application (see Part XXIII of Chapter 3 of the said Act of Sederunt), the provisions of Rules 2.3 and 2.6(3) have in my view no application to the presently proposed appeal because it is an appeal in respect of which the time-limit is "otherwise prescribed" by the statute itself, namely by section 22(4) of the Act. By Rule 2.6 a time-limit is provided, together with a relieving or dispensing provision "on special cause shown", only for appeals for which such a limit "is not otherwise prescribed" and the relief which may be afforded by Rule 2.3 applies only in respect of failures to comply with a provision or rule contained in Part II of Chapter 2 of the Act of Sederunt. Councillor Vassie's right of appeal is therefore governed as to time-limit entirely by section 22(4) of the Act of 2000 which contains no express provision for dispensing with or stretching the twenty-one-day time limit.

The chief question for decision at today's hearing therefore came to be whether the statutorily enacted time-limit in section 22(4) of the Act of 2000 is to be viewed as mandatory or as merely directory (or regulatory of procedure) in character. If the latter, the court would then have a power at common law to dispense with the time-limit if it thought fit in the circumstances of the case. For the Standards Commission it was maintained by Ms Durkin that the time-limit provision in the statute is clearly mandatory and she referred me to three decided cases in which there had been judicial discussion of these matters under different statutory or quasi-statutory provisions, namely (i) National Commercial Bank of Scotland v Assessor for Fife 1963 SC 197; (ii) Sinclair v Lothian Regional Council 1981 SLT (Sh.Ct.) 13; and (iii) T v Secretary of State for Scotland 1987 SCLR 65. I find myself in agreement with the analysis of the position set out by Sheriff Principal JA Dick, QC at the second half of page 71 in the SCLR report of the last of these cases, where he distinguished the first and (very politely) doubted the correctness of the second. In National Commercial Bank v Assessor for Fife the time-limit was not statutorily enacted by an Act of Parliament but was instead prescribed by subordinate legislation (a timetabling order by the Secretary of State) and was held to be merely directory and regulative of procedure. In Sinclair v LRC the time-limit was enacted directly by statute, namely section 38(5) of the Education (Scotland) Act 1962, and was viewed by Sheriff Principal Dick as mandatory. The sheriff in Sinclair did not enter into discussion of the mandatory/directory distinction and the case was on this point wrongly decided (although one can see why equitable considerations there drove the sheriff to seek a means of circumventing the time-limit, which he had no power to do). In T v Secretary of State for Scotland the time-limit was laid down by section 29(4) of the Mental Health (Scotland) Act 1984 and was held by Sheriff Principal Dick to be mandatory. There are of course statutes in which the statutorily enacted time-limit is accompanied by an express provision enabling the court to dispense with the time-limit in appropriate circumstances: section 39(3) of the Licensing (Scotland) Act 1976 is one such example but the Act of 2000 with which we are here concerned contains no such dispensing provision. I do not say that a statutorily enacted time-limit unadorned with any dispensing provision can never be interpreted as merely directory but certainly the strong presumption must be in my view that it has to be treated as mandatory.

The statutory time-limit in section 22(4) of the Act of 2000 presently under consideration should in my opinion be treated for a number of reasons as mandatory. It is enacted by statute in clear terms and is not accompanied by any express dispensing or relieving provision conferred on the court. The purpose of the Act of 2000 moreover is very clearly to deal with public matters, as its long title indicates, and it is very desirable that there should so far as possible be certainty in public affairs. Once it has been decided in accordance with the provisions of the Act that a breach has occurred of a code of conduct applicable to a holder of public office and that a particular sanction should be imposed, it is conducive to the public interest that that decision should be open to challenge only within a brief period of time thereafter and that there should not be uncertainty remaining such as would arise from the possibility of its being appealed after a long and indefinite interval. It must in my view have been the intention of the Parliament that in such a sphere the position would become fixed and known to all once the Standards Commission had performed their function in a particular case without the prospect of change unless shortly challenged - hence the enactment of a short period for the lodging of an appeal without provision for stretching that time-limit at the court's discretion.

For these reasons I take the view that I have no discretion to vary or dispense with the time-limit enacted in section 22(4) of the Act of 2000 and that Councillor Vassie's motion must accordingly be refused.

Even if however I were wrong in this and the time-limit in the Act should properly be treated as directory in character so that I would be empowered to exercise such a discretion in favour of the councillor, I would in the circumstances of the present case be disinclined to do so. In the first place I regard the lapse of time which has occurred from the imposition of the sanction on 6 February 2006 (or the last day for appealing it on 27 February 2006) until the lodging of the present motion on 11 May 2006 as far too long an interval to excite the sympathy of the court in a matter such as this. Even if the fault lay (as I was told) at the door of a previous solicitor I would have expected Councillor Vassie to have taken steps to place his instructions elsewhere much sooner than he did. In the second place the material available to me (five documentary productions lodged for the councillor plus a tendered initial writ in the proposed summary application plus statements made by his solicitor in court) inclines me to doubt overall whether timeous instructions to lodge an appeal were clearly given in fact to that previous solicitor. The e-mail dated 8 March 2006 (production number 1), whose message was repeated in subsequent e-mails, gives the plain impression that it was only at that date (itself beyond the twenty-one-day time-limit) that an actual copy of the Commission's issued decision to be appealed against was transmitted to the previous solicitor following upon a consultation which I was told had occurred the day before. Although it was stated to me in court that instructions to proceed with an appeal had been given as early as 9 February 2006, I am left thinking that at that early stage there was only a consultation and discussion with the previous solicitor as to the prospects and that by the time more concrete instructions were forthcoming the twenty-one days had already elapsed. In the third place I am influenced here by the same considerations of public policy mentioned above: expedition in these matters is required in the public interest and things cannot be revisited so far down the line. I appreciate that the councillor's constituents are for the time being deprived of that part of his services whereby he would normally represent their interests in discussion and debate at council and committee meetings and the like and that their position in this respect might (or might not) be ameliorated if the councillor's appeal were now to be heard, but I take the view that that consideration is outweighed by the more general need for certainty in public affairs which militates against the allowance of late challenges to decisions such as that which the councillor seeks to appeal.

The councillor's motion having been refused and the Standards Commission having moved for expenses, I shall award expenses in their favour to follow success.

BAK