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 disagrees with this interpretation. The parties have agreed to present a special case for the opinion of the Inner House. The question posed is:

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.