Inner House rules devilling period for advocates does not break 10-year qualification criteria for sheriff appointment

About this case:

• Citation:
  [2025] CSIH 5
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

The question arose in a special case under section 27 of the Court of Session Act 1988 raised by the Faculty of Advocates and the Judicial Appointments Board for Scotland after a practising advocate with over 10 years of experience applied for the office of sheriff. By letter of May 2024, the JABS intimated that their devilling period had interrupted the period of continuous legal qualification necessary for appointment.

The case was considered by Lord Carloway, Lord Malcolm, and Lord Pentland. The Dean of Faculty, Dunlop KC, and R MacLeod, advocate, appeared for the Faculty and C O’Neill KC for the JABS.

A disincentive to solicitors

Under section 5(1) of the Sheriff Courts (Scotland) Act 1971, it was stipulated that a person shall not be appointed as a sheriff without having been legally qualified as an advocate or solicitor for at least 10 years. This provision was repealed by the Courts Reform (Scotland) Act 2014 in favour of a requirement under section 14(1) of that Act that an individual had been legally qualified “throughout the period of 10 years immediately preceding the appointment”. It was noted that a solicitor, in order to begin devilling, must first have their name removed from the appropriate roll of solicitors.

In the Explanatory Notes for the 2014 Act, it was said that section 14 “re-enacted the substance” of section 5 of the 1971 Act. There was some discussion in Parliament about the effect of the words “immediately preceding” when they were inserted by the 2014 Act into section 20A of the Judiciary and Courts (Scotland) Act 2008, in the context of whether this would unfairly discriminate against a person who had been on parental leave or absent from work due to caring responsibilities.

For the Faculty it was submitted that the 2014 Act should be interpreted in a manner which gave purposive effect to the enactment, avoided absurdity, and produced a result consistent with what had been the JABS’s settled practice. There was no debate upon this section in Parliament and no indication that anything other than re-enactment was intended. The Faculty’s requirement of removal from the solicitors roll had no bearing on legal qualification, and JABS’s interpretation would act as a disincentive to solicitors considering a shrieval career from gaining experience as an advocate beforehand.

For the JABS it was submitted that the words used in the 2014 Act were the primary source by which the meaning of the relevant provision should be ascertained. The Act made clear that a solicitor was a person who was on the roll. Parliament had legislated for continuity of legal qualification. Construing “solicitor” as a reference to one who had been admitted, rather than being on the roll, was not consistent with the requirement of continuity.

Makes no sense

Delivering the opinion of the court, Lord Carloway noted that the principles of statutory interpretation were not in dispute here, saying: “The principal question is whether the JABS’s current interpretation of section 14 in its context produces an absurd result. What then is its context? The provision is designed to set out the minimum formal criteria for eligibility for appointment as a sheriff. The object is not to exclude persons who have already achieved the necessary experience and who have, in a realistic sense, been continuously in legal practice at the time of appointment.”

He continued: “The Courts Reform (Scotland) Act 2014 is phrased differently, principally because, in accordance with modern drafting techniques, it defines, in section 136, ‘advocate’ and ‘solicitor’. There is no difficulty in understanding these definitions. These definitions are, per se, clear and unambiguous. In that respect the Faculty’s submission that a person remains as a solicitor, despite not being on the roll, falls to be rejected.”

Asking whether the rules as interpreted by the JABS produced an absurdity, Lord Carloway said: “The operative and most important part of section 14(1) is that the person is to be legally qualified, and to be so throughout the 10 years immediately preceding appointment. Subsection (3) does not say that a person must only be either a solicitor or an advocate throughout the 10-year period. Whether that is the correct interpretation depends largely on whether it would lead to absurdity according to that term’s very wide meaning. The answer is that it would lead to absurdity.”

He explained further: “The most obvious example is that it would result in a person, who had been a solicitor for, say, twenty years, enhanced his skills and learning by passing advocate and then practised for another nine years, being rendered ineligible for appointment simply because of the effect of the intervening devilling period. The impact of the devilling period would be to wipe out the 20 years of practice as a solicitor in the context of eligibility for appointment as a sheriff. That makes no sense and cannot have been what Parliament intended to happen.”

Lord Carloway concluded: “[The JABS’s interpretation] would discourage solicitors from taking advantage of the devilling scheme; thus improving their skills to be a judicial office holder. This would not be good, in terms of the base experience of those applying to be a sheriff, either for applicants or the appointment process. It is no answer to this inconvenience to say that the Faculty could, as they intend, tweak their Regulations for the future. A real difficulty attaches at present to many advocates of under 10 years call.”

The court therefore answered the question of whether the devilling period interrupted the 10-year continuous qualification requirement in the negative.