About this case

Case name

Special Case between The Faculty of Advocates and The Judicial Appointments Board for Scotland

Case reference number

XA66/24

Date of hearing

Friday 20 December 2024

Time of hearing

10:30 to 13:00 then 14:00 until conclusion

Division

First

Judges

• Lord President
• Lord Malcolm
• Lord Pentland

Agents and Counsel

For the First Party (The Faculty of Advocates)

• Agents: Balfour+Manson LLP
• Counsel: Dean of Faculty, Roderick Dunlop KC and Roderick MacLeod

For the Second Party (The Judicial Appointments Board for Scotland)

• Agents: Brodies LLP
• Counsel: Christine O’Neill KC, Solicitor Advocate

Case description

The Courts Reform (Scotland) Act 2014 requires anyone applying for Shrieval office to have been “legally qualified” throughout the period of 10 years immediately preceding their appointment. The Act provides that a person is legally qualified if they are either an advocate or an enrolled solicitor.

A practising member of the Faculty of Advocates applied to be a sheriff. The applicant had been an advocate for less than 10 years. They had previously been a solicitor. Under the Faculty’s admission regulations an intrant must have their name removed from the roll of solicitors before the beginning of his or her pupillage. The total period during which the applicant had been an advocate and a solicitor exceeded 10 years. The Judicial Appointments Board for Scotland (JABS) advised that they were ineligible for appointment as they had not been legally qualified for the requisite period. Their pupillage with the Faculty had interrupted the period of continuous legal qualification necessary for appointment.

The Faculty of Advocates disagree with this interpretation. The parties have agreed to present a Special Case for the opinion of the Inner House. The question posed is:

“Is the period of 10 years of continuous legal qualification stipulated in s.14(1)(b)(ii) of the Courts Reform (Scotland) Act 2014 interrupted in the case of a person who has had his name removed from the appropriate Roll of Solicitors in order to begin a period of devilling or pupillage with a view to attaining Membership of the Faculty of Advocates?”

The Faculty argues that the pupillage period should not interrupt the continuous period of 10 years. Any other reading of the 2014 Act would produce absurd results, which Parliament cannot have intended. There could be unlawful discrimination in terms of Article 14 of the European Convention on Human Rights. There is a distinction between a “solicitor” and an “enrolled solicitor”. This would allow a person to be considered a solicitor while devilling.

JABS argue that the devilling period interrupts the continuous period of 10 years. There is no ambiguity in the legislation. “Solicitor” means someone on the Roll of Solicitors. No absurdity arises. Any difficulty could be resolved by amendment of the Faculty’s admission regulations.