Judges are not akin to employees of Scottish Government

A case about sexual harassment in the workplace raised interesting questions about the independence of the Scottish judiciary and whether judicial office holders have an “employer” who can be held vicariously liable for their actions.

A Scottish solicitor brought a claim for compensation following an alleged series of assaults and harassment against her by a sheriff in 2018.

The pursuer originally raised the claim against the sheriff himself and also against each of the Lord President, the Lord Advocate, and the Advocate General for Scotland based on vicarious liability. All three additional defenders were included as there were issues with time bar and the pursuer’s solicitors had not reached a concluded view as to the correct defender for the grounds of action based upon vicarious liability. This is hardly surprising given that the Law Officers themselves could not agree; both denied that any vicarious liability arises but each said that, if it did, the other would be the appropriate Law Officer to represent the Crown in these circumstances.

This part of the dispute was determined by the Lord Ordinary who found (in X v Y 2023 SC 235) that the Lord Advocate, representing the Scottish Government, was the appropriate Law Officer.

This conclusion was reached on the basis of the Crown Suits (Scotland) Act 1857 and section 40(2)(b) of the Crown Proceedings Act 1947. Lord Clark found that the UK government has no real interest or involvement in the Scottish judiciary (except in determining the amount of salary and pensions, as a reserved matter) and that in a devolved nation, with its own legal system, with the Scottish Ministers paying the salaries of judicial office holders, the First Minister recommending who is to be appointed, and being the person responsible for removal of a sheriff from office, it must be the Scottish Administration that has responsibility for any Crown liability in this case.

There was no challenge to this part of the decision in the reclaiming motions so, on the basis of the Lord Ordinary’s decision, if there is vicarious liability for the actions of a sheriff, it could only be on the part of the Scottish Government. It was for the Inner House then to consider whether the Lord Ordinary was correct in determining that vicarious liability could arise at all.

Establishing vicarious liability

Both parts of the test of vicarious liability require to be met for a claim to succeed. In this case that meant the court must find:

1. that the relationship between the Scottish Government and a sheriff is akin to that between an employer and an employee; and
2. there is a sufficiently close connection between the conduct alleged against the sheriff and that employer/employee relationship.

On the first part of the test, it is common ground that sheriffs are not employees of the Scottish Government. Nor are they true independent contractors. The court found that they are more aptly described as being sui generis (i.e. in a class of their own) but that does not shed much light on whether they are akin to employees.

The court also considered whether or not judicial officeholders are Crown servants. The Inner House described this as a contentious issue but concluded that, because of the absence of control by the Crown over them, judicial officeholders are not Crown servants for the purposes of the Crown Proceedings Act 1947. They are officers of the Crown instead. This factor therefore points away from the existence of an employer and employee relationship.

Judicial independence

The main argument against the existence of an employer/employee relationship though is the fundamental principle of judicial independence in constitutional law. The judiciary is a branch of government separate from and independent of both the legislature and the executive.

Section 1 of the Judiciary and Courts (Scotland) Act 2008 guarantees continuing judicial independence and imposes a duty among inter alia the First Minister, the Lord Advocate, the Scottish Ministers, and the Scottish Parliament to uphold the independence of the judiciary.

The Scottish Government has no control over the performance by sheriffs of their judicial functions, nor does it exercise control over the judiciary as an institution.

Although the Scottish Government may be the ultimate funder of sheriffs’ remuneration, allowances and pension benefits, these financial arrangements – carefully put in place in order to preserve judicial independence – are very different from those in a normal employer/employee relationship.

Decision

The Inner House held that the action against the Lord Advocate, representing the Scottish Government, should be dismissed as there is no basis for a finding of vicarious liability.

The Inner House agreed that treating judicial office holders as akin to employees of the Scottish Government, and thus (in circumstances where the second stage of the vicarious liability test is also met) rendering the Scottish Government vicariously liable for them, would undermine the public perception of judicial independence. This means that any remedy for the wrongful actions of a judicial office holder is against that person as an individual, not against the Lord Advocate.

This decision upholds the constitutional principle of judicial independence. Judicial office holders in Scotland are, and should be seen as, independent of the Scottish Government.

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