190 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
of office by the individual, enabling it to be brought to an end within a comparatively
short period. This reinforces the impression that the tenure of
office by the individual temporary sheriff is at the discretion of the Lord
Advocate. It does not, at least prima facie, square with the appearance of
independence.”35 Lord Reed discussed how a temporary judge might view
the lack of security of tenure: “Judicial independence can be threatened not
only by interference by the Executive, but also by a judge’s being influenced,
consciously or unconsciously, by his hopes and fears as to his possible
treatment by the Executive. It is for that reason that a judge must not be
dependent on the Executive, however well the Executive may behave:
‘independence’ connotes the absence of dependence.”36 He concluded: “it
seems to me that the need for the temporary sheriff’s appointment to be
renewed annually at the discretion of the Executive, and his lack of security
of tenure, are in any event factors which could give rise to a reasonable perception
of dependence upon the Executive. The necessary appearance of
independence is therefore in my opinion absent.”37
The reasoning in Starrs v. Ruxton of how short-term appointments and
renewals being at the executive’s discretion affect judicial independence is
supported by international declarations and conventions, and national
practices on judicial independence.38
Removal from Designation List
The CE has discretion to remove judges from the designation list if they
make any statement or behave in any manner endangering national security
during the term of office.39 The CE decides what constitutes endangering
national security and determines whether the judge behaved in such
manner. This state of affairs is contrary to the principle of independence of
the judiciary, which requires that removal from office should be in accordance
with a procedure that guarantees fairness and the independence of
the decision makers from government.40 With the NSL, the procedure for
removal from the designation list is unknown, and the independence of the
decision maker from the executive is absent.
In Starrs v. Ruxton, Lord Prosser discussed the problem with this state of
affairs: “But if a judge’s independence is to be preserved, notwithstanding
the fact that he can thus be removed, two things seem to me to be important.
First, the question of what will be regarded as ‘culpa’ cannot be left to
the discretion of any person upon whom the judge should not be in principle
be dependent. And secondly, even if the scope of ‘culpa’ is known and
determined, the question of whether ‘culpa’ on the part of the judge has
been established cannot be left to the discretion of such a person”.41 The NSL
fails both conditions; the CE is judge and jury.