Special Case under section 27 of the Court of Session Act 1988 by the Faculty of Advocates and the Judicial Appointments board for Scotland (Court of Session)

Factual and Procedural Background

This opinion arises from a Special Case under section 27 of the Court of Session Act 1988 concerning eligibility criteria for appointment as a sheriff. The First Party, a professional legal body, and the Second Party, the Judicial Appointments Board for Scotland (JABS), dispute the interpretation of the Courts Reform (Scotland) Act 2014 regarding the continuity of legal qualification. Specifically, the issue concerns whether a period of devilling (pupillage) interrupts the required continuous 10-year period of legal qualification when an applicant transitions from solicitor to advocate. The applicant, a practising advocate with less than 10 years' call but with prior solicitor experience exceeding 10 years in total, was initially deemed eligible by JABS but later deemed ineligible due to the interruption caused by devilling. The court was asked to determine whether the 10-year continuous legal qualification period is interrupted by the devilling period during which the applicant’s name is removed from the roll of solicitors.

Legal Issues Presented

1. Whether the 10-year continuous period of legal qualification required under section 14(1)(b)(ii) of the Courts Reform (Scotland) Act 2014 is interrupted by the removal of an applicant’s name from the roll of solicitors to commence a period of devilling before becoming an advocate.

Arguments of the Parties

First Party's Arguments

• The 10-year continuous legal qualification period should not be interrupted by devilling or removal from the solicitors’ roll, as this would contradict the purpose of the legislation and settled practice.
• Statutory interpretation should be purposive, avoiding absurdity and unfairness, and consistent with the Judicial Appointments Board for Scotland’s prior settled practice.
• External aids such as policy memoranda and explanatory notes confirm the intention to re-enact prior law without material change, supporting continuity of legal qualification.
• Literal interpretation would produce absurd and illogical results, such as penalising solicitors who become advocates by resetting their qualification period due to devilling.
• The definition of “solicitor” in the Act should be contextually adapted to include solicitors removed from the roll for devilling, as the removal is procedural rather than a loss of legal qualification.
• The JABS's interpretation creates unfair discrimination, contrary to the principles of the Human Rights Act 1998, although no breach of Article 14 ECHR is ultimately established.
• Settled practice over nearly 10 years supports the Faculty’s interpretation and indicates ambiguity in the statutory language that should be resolved purposively.

Second Party's Arguments

• The statutory language is clear and unambiguous: the 10-year continuous period is interrupted by removal from the roll of solicitors during devilling.
• The definitions of “solicitor” and “advocate” in section 136 of the 2014 Act must be applied literally; a solicitor is someone currently on the roll.
• Continuity of legal qualification requires uninterrupted enrollment on the roll or membership of the Faculty of Advocates; devilling breaks this continuity.
• The JABS’s interpretation avoids ambiguity and absurdity within the statute and aligns with the natural and ordinary meaning of the words.
• The difficulties faced by applicants during devilling arise from the Faculty’s internal regulations, not the statute.
• Settled practice cannot override clear statutory language absent ambiguity.
• No violation of Convention rights arises because eligibility for judicial office is not a possession protected by Article 1 of Protocol 1 ECHR.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In Re JR222 [2024] 1 WLR 4877	Principles of statutory interpretation: ascertain meaning in light of context and purpose; avoid absurdity.	The court applied this modern approach to interpret section 14 purposively while respecting statutory language.
R (O) v Home Secretary [2023] AC 255	Words in statute are primary source of meaning; external aids secondary.	Supported the court’s reliance primarily on statutory text and context for interpretation.
Barclays Finance v Mawson [2005] 1 AC 684	Purposive statutory interpretation to give effect to legislative purpose.	Confirmed purposive approach to avoid absurdity in interpreting continuous legal qualification.
R (Edison First Power) v Central Valuation Officer [2003] 4 All ER 209	Definition of absurdity in statutory interpretation includes anomaly, illogicality, unfairness.	Cited to justify avoiding a literal interpretation that would produce unfair and illogical results.
Mykoliw v Botterill 2010 SLT 1219	Absurdity includes unworkability and illogicality in statutory interpretation.	Supported the court’s conclusion that the JABS’s interpretation leads to absurdity.
R (N) v Lewisham LBC [2015] AC 1259	Settled practice may inform interpretation only if there is ambiguity.	The court acknowledged settled practice but found no judicial endorsement, limiting its weight.
R (Burkett) v Hammersmith LBC [2002] 1 WLR 1593	Interpretation requires certainty and predictability in statutory language.	Supported the JABS’s emphasis on clarity and predictability in eligibility criteria.
Denisov v Ukraine (App no 76639/11) (2018)	Eligibility for public office does not constitute possession under Article 1 Protocol 1 ECHR.	Used to reject claim that discrimination in eligibility engaged Convention property rights.
Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309	Clarifies what constitutes possession under Article 1 Protocol 1 ECHR.	Referenced to distinguish eligibility for judicial office from protected possessions.
Van Marle v Netherlands [1986] 8 EHRR 483	Further authority on possession under ECHR.	Supported the conclusion that future eligibility is not a possession protected by the Convention.
Blue Metal Industries v RW Dilley [1970] AC 827	Contextual reading of statutory provisions.	Applied to interpret section 14 in its statutory context.

Court's Reasoning and Analysis

The court commenced its analysis by affirming the established principles of statutory interpretation: the natural and ordinary meaning of the words in context is primary, with external materials serving only a supplementary role. The court recognized that the definitions of “solicitor” and “advocate” in section 136 of the 2014 Act are clear and unambiguous, and that the 10-year continuous legal qualification requirement under section 14 is the operative provision.

The court examined whether the JABS’s interpretation—that removal from the roll during devilling interrupts the continuity of legal qualification—produced an absurd result. It concluded that it did, because it would penalize applicants who have extensive combined experience as solicitors and advocates by effectively resetting their qualification period due to the devilling interval. This outcome would be illogical, unfair, and inconsistent with the legislative purpose of assuring continuous legal qualification.

The court reasoned that devilling is an interim stage between being a solicitor and an advocate and that an applicant remains legally qualified throughout this period despite removal from the solicitors’ roll. The court rejected the Faculty’s argument that the statutory definitions should be overridden but held that the definitions should be subordinated to the broader statutory purpose of continuous legal qualification. This purposive construction avoids absurdity without contradicting the statutory language.

The court also considered the implications of settled practice by JABS, which had for nearly a decade treated such applicants as continuously qualified. Although settled practice cannot override clear statutory language, it lent support to the view that the statutory wording was ambiguous and could be resolved by purposive interpretation.

Finally, the court addressed the human rights argument and found no breach of Article 14 ECHR or the Human Rights Act 1998, as eligibility for judicial appointment does not constitute a possession protected by Article 1 of Protocol 1.

Holding and Implications

The court answered the question posed in the Special Case in the negative, holding that the 10-year continuous period of legal qualification required under section 14(1)(b)(ii) of the Courts Reform (Scotland) Act 2014 is not interrupted by the removal of an applicant’s name from the roll of solicitors to commence devilling.

This decision means that applicants who transition from solicitor to advocate through devilling retain continuous legal qualification for the purpose of eligibility for appointment as a sheriff. The ruling resolves the anomaly and unfairness identified in the JABS’s previous interpretation, aligning the statutory framework with legislative purpose and settled practice.

No new precedent was established beyond clarifying the statutory interpretation of continuous legal qualification in this context. The parties have agreed to bear their own expenses.