Jersey Unreported Judgments

Bar application - reasons regarding application by the respondent for admission to the bar as an advocate.

[2015]JRC007

Royal Court

(Samedi)

13 January 2015

Before     :		W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Fisher, Kerley, Marett-Crosby, Crill, Olsen, Blampied, Grime and Ramsden
Between	Her Majesty's Attorney General		Representor
And	Monica Dunlop		Respondent
And	The Law Society of Jersey		Intervener

IN THE MATTER OF AN APPLICATION UNDER ARTICLE 8 OF THE ADVOCATES AND SOLICITORS (JERSEY) LAW 1997

H. Sharp, Solicitor General for the Representor.

Advocate P. D. James for the Respondent.

Advocate V. S. Milner for the Law Society of Jersey.

judgment

the deputy bailiff:

1.        The full Court sat on 1^st December, 2014, to receive the representation of the Attorney General in connection with an application made by the respondent for admission to the Bar as an advocate pursuant to Article 8 of the Advocates and Solicitors (Jersey) Law 1997 ("the Law").  At the conclusion of the hearing, the Court announced that it did not consider that the respondent met the necessary criteria under the Law for admission to the Bar, and that its reasons would be delivered later.  These are those reasons.  We record that the Court also awarded the respondent her costs out of public funds, to be taxed if not agreed. 

2.        The Attorney General's Representation comes about because the respondent applied in writing to him for admission to the Bar pursuant to Article 8(1) of the Law.  Her application was accompanied by documentary evidence in support.  The usual course is that on receipt of an application of this kind, arrangements are then made with the Bailiff's judicial secretary for a sitting of the Royal Court to consider the application as soon as is practicable.  The admission ceremony is a formality and a joyous occasion for the applicant and his or her family and friends who have been invited to attend and it would be unthinkable to have any uncertainty over a person's entitlement to be admitted to the Bar raised at such a ceremony.  It is therefore entirely right in the present case, where such uncertainty has arisen, for the Attorney General to have brought a representation before the Superior Number seeking direction as to whether the respondent is or is not entitled to be admitted. 

3.        In its material parts, Article 3 of the Law is in the following terms:-

"(1)     A person shall be entitled to be admitted to the Bar if -

(a)        .......

(b)        the person fulfils the requirements in paragraph (2) or (3); and

(c)        the Royal Court is satisfied that the person is a fit and proper to be admitted.

(2)       The requirements are that -

(a)        the person has passed -

(i)        either the examinations and assessments included in any course validated by the Bar council for call to the Bar of England and Wales by any one of the Inns of Court in England or the examinations and assessments included in any course validated by the Law Society of England and Wales for admission as a solicitor of the Supreme Court of England and Wales or such other examinations and assessments as may be specified, and

(ii)        the qualifying examination; and

(b)        in the period of three years immediately preceeding the person's application for admission to the Bar in accordance with Article 8, the person has been employed for a period of, or periods totalling, two years in a relevant office or in more than one such office.

(3)       ...

(4)       For the purpose of paragraph (2) (b), employment in an advocates' or solictors' office outside Jersey may be taken to be employment in a relevant office if the advocate or solicitor certifies that during the period of the person's employment in the office the person was engaged predominantly in matters of Jersey Law.

(5)       If the total period of employment that is in an office or offices outside Jersey, and taken to be employment in a relevant office by virtue of paragraph (4), exceeds six months, it shall be reckoned for the purpose of paragraph (2) (b) as only six months."

4.        The respondent is academically well qualified.  She has an Honours degree in Law from Exeter University, and following her passing the Solicitors final examination in England and Wales, was admitted as a solicitor of the Supreme Court.  In addition she has passed the qualifying examination specified under Article 6 of the Law.  The court is entirely satisfied that she is a fit and proper person to be admitted for the purposes of Article 3 (1) (c) of the Law.  There never has been any doubt about that in these present proceedings but in addition it may be said that her meeting this requirement is completely demonstrated by her raising on her own initiative the question of her entitlement to be admitted to the Bar. 

5.        The respondent did her Articles at Messrs Cameron Markby Hewitt in London where she worked between 1993 and 1996 and she was admitted as a solicitor of the Supreme Court on 1^st June, 1995.  She was then employed either as in-house counsel or in solicitors' firms until 2005 when she joined Messrs Ogier in Jersey, where she worked until October 2007.  She was employed at Messrs Mourant Ozannes from September 2009 until January 2011 and then again at Messrs Mourant Ozannes from February 2012 to date.  On the face of it, one might then be tempted to ask what possible problem could there be.  The answer to that is that when we use the expression "employed" at Messrs Mourant Ozannes, she has only been employed part-time, having worked originally thirteen hours per week from February 2012, but since 6^th August, 2012, this has increased to fourteen hours per week. 

6.        She has also taken some 175 hours of unpaid leave whilst employed at Mourant Ozanne and the Attorney's representation indicates that by the time of her provisional swearing in date of 18^th December, 2014, she will have accumulated a little short of 1,900 hours in two years and nine months of employment.  Accordingly the question is posed as to what the word "employed" means where it appears in Article 3 of the Law. 

7.        The Solicitor General helpfully submitted that there were three possible interpretations of the word "employed":-

(i)        The expression could refer to any employment contract with a relevant office without any requirement for any minimum number of hours per week, and indeed without any requirement that the employee should be engaged as a lawyer. 

(ii)       The expression could mean that the employment contract must be relevant, in the sense of requiring employment in a relevant legal job, and for a substantial enough period so that, in the round, one could treat it as substantive employment; or

(iii)      The expression could require full-time employment as a lawyer. 

8.        The fact that there were three possible interpretations demonstrated that there was ambiguity in the language employed in the statute, and it was therefore contended that the court was entitled to look outside the terms of the statute in order to identify the intention of the States when the Law was introduced.  The Solicitor General invited us to look at the report and explanatory note attached to the passage of the legislation in 1997.  He submitted that it was absurd to think that the States would introduce a requirement for two years' employment in a relevant office if in fact that requirement was satisfied by one hour a week working on the photocopying machine and therefore the first possible interpretation cannot be the correct one.  As to the second possible interpretation which required one to reach the conclusion that the States must have had in mind employment which was not full-time but more than de minimis, the problem was where and how one drew the line.  The simple answer was that nobody knew, and as the States did not confer any discretion in the terms of the statute, the natural conclusion to draw was that the States did not in fact intend to create one and did not give any guidance about where the line might be drawn.  It was important that anyone should know before they embarked on a legal career whether they were going to be entitled to be admitted or not. 

9.        On the basis that both other possible interpretations created substantial problems, the Solicitor General contended that one was left with the remaining option which is a tough provision, but is simple to apply and easily manageable.  In his submission, it would result in some cases with a tough outcome - a person who had obtained all the necessary academic qualifications might be working for thirty hours a week for five years, but that would not be sufficient because he or she would not be employed full-time in a relevant office. 

10.      Both Advocate James for the respondent and Advocate Milner for The Law Society of Jersey agreed that the question for the court was to determine what the word "employed" meant in Article 3.  Both contended that the provision was not ambiguous, and therefore there was no reason to look outside the terms of the statute.  "Employed" meant exactly what it said, and if an applicant were to have worked only one hour a week in a relevant office, then nonetheless that applicant was employed. 

11.      Advocate James submitted that there was just as much uncertainty if one were to follow the Solicitor General's conclusions that a thirty-five hour per week employment was the right test.  He pointed out that different firms had agreed with their employees' different quantities of study leave, sick leave, compassionate leave and maternity leave.  He was not concerned at the possibility that a person might achieve the necessary academic qualifications but be employed as a cleaner rather than as a lawyer, because he submitted this would be a self-policing provision.  In practice those who were employed as cleaners would not be seeking to qualify as Jersey advocates.  In his submission, it was wrong to introduce the words "full-time" into the statute and the court would not be justified in doing so. 

12.      In endorsing Advocate James' submissions, Advocate Milner contended that the skeleton argument for the Attorney General conflated the question of standards with the question of full-time employment.  This was wrong because standards might be higher with part-time employment in one office than full-time employment in another.  There is no evidential basis for applying any qualitative assumptions and we should not do so.  In her submission, if the States wanted to require full-time employment, then they should have said so. 

13.      Advocate Milner went on to submit that the court would be acting in a discriminatory fashion contrary to the Human Rights (Jersey) Law 2000 if it were to construe the statute as the Solicitor General requested us to do.  We return to this argument later. 

14.      There are two points we would like to make before turning to our analysis of the legislation and indeed of the Law.  The first is that we entirely accept that the respondent is not only academically qualified but has spent a considerable number of hours in legal offices and in the legal environment since her qualification as an English solicitor in 1995.  We also entirely accept that she has spent a fair amount of time in her part-time employment in relevant offices in Jersey since coming to the island in 2005.  We note that it was she who raised the issue as to whether her part-time employment caused a difficulty in the construction of the Law.  We note with great regret that the result of our construction of the legislation is that it is unclear when she will be able to say that she is entitled to be admitted to the Bar in Jersey, which is extremely hard on her. 

15.      This leads on to our second point.  It is perfectly obvious to the court that this piece of legislation is crying out for review by the States.  There has been a material change since 1997 in the formation of the Institute of Law.  In addition, the hardship which the respondent is suffering in this case is a good illustration of why that review should take place urgently.  It is of course a matter for the States to consider this judgment and we hope the Attorney General will bring it to the attention of the Chief Minister in the hope that consultation on the terms of a new draft might be undertaken in very early course indeed.  No doubt the Law Society will itself be pressing the Chief Minister in this connection.  We record that the syllabus has recently been the subject of an extensive review and our comments should not be taken as a suggestion to reopen that issue. 

16.      We consider that the legislation is ambiguous and we accept the submission of the Solicitor General that because there are at least three possible interpretations of the word "employed" in Article 3 of the Law, that ambiguity is established.  It is therefore open to us to have regard to the report and explanatory note which accompanied the adoption of the legislation in 1997 and the subsequent amendments which have been passed. 

Legislative History

17.      We start with the Loi (1955) Sur L'Admission au Barreau.  The recital acknowledges that the 1892 Law on the admission to the Bar provided no guarantee that persons admitted to the Bar under the terms of that Law would necessarily have any knowledge of the laws and customs of Jersey and the procedure and practice followed in the courts of this island.  The essential provisions of the 1955 Law are that any British subjects whose home had been in the island for six consecutive years and was aged twenty-one or more and had passed either an examination on the Loi (1880) sur la propriété foncière, the Jersey law of succession and wills including the Loi (1891) sur la partage d'héritage and conveyancing, and a civil and criminal procedure paper or the solicitors examination established by the Law of 1891 could exercise the profession of advocate provided that he was a barrister from one of the Inns of Court in England, or could produce a diploma in law from a French university.  By Article 2, there was a provision that a British subject who had exercised the profession of solicitor of the Royal Court for five years could exercise the profession of advocate if he passed an examination on the constitutional law of the island, the English law of contract and tort, and the criminal law of the island.  There was no requirement to work in a relevant office. 

18.      The 1955 Law was repealed by the Advocates (Jersey) Law 1968.  This reduced the period of ordinary residence which was required to two years immediately preceding the application for the examination which was required to be passed.  There was a more prescriptive examination system.  There was a requirement that the successful applicant for admission to the Bar should swear the customary oath.  There was provision for delegated legislation in that the detail of the examinations which were required to be passed would be specified in rules made by the Royal Court.  Once again, there was no requirement that the applicant for admission to the Bar should have been employed in a relevant office. 

19.      There were amendments to the 1968 Law in 1971 and 1995, but it seems to us that the significant amendment was the Advocates (Amendment Number 2)(Jersey) Law 1990.  The 1990 Amendment Law introduced a requirement that applicants for admission to the Bar should provide a "Certificat d'Etudes Juridiques Françaises et Normandes" from the University of Caen or such other equivalent qualification as might from time to time be specified by rules of court.  In order to obtain the Caen certificate, it was necessary to attend at Caen University, initially we believe for periods of six months although the course was subsequently revised so as to require a shorter period of attendance. 

20.      In our view there is no doubt that the 1990 Amendment Law was introduced for similar reasons as prompted the passage of the 1955 Law, namely that there was identified a requirement to ensure that those practising at the Bar in Jersey had a sufficient knowledge of the laws and customs of this island.  Discussion in legal circles as to whether the Jersey law of contract can be ascertained by looking at the English law of contract or the French law of contract is symptomatic of the concerns which underlay the passage of the law in 1955 and the introduction of the Caen requirement in 1990. 

21.      The 1968 Law and the amendments to it were repealed by Article 12 of the Advocates and Solicitors (Jersey) Law 1997.  The 1997 Law, when first passed, contained qualifying requirements for admission to the Bar as to citizenship and the passing of particular examinations.  For the first time, however, there was added the requirement that the applicant should have been employed in a relevant office.  The office of Article 3 (2)(b) when first adopted was in slightly different terms as follows:-

"(b)     He has been employed, for the period of two years immediately preceding his application for admission to the Bar in accordance with Article 8, in a relevant office or in more than one such office."

22.      Again there was no definition of the word "employed".  However the report of the Legislation Committee, which set out the background to the Projet de Loi, contained this provision:-

"1.      Background

The Advocates (Amendment Number 2) (Jersey) Law 1990 introduced a requirement that aspiring advocates should, with effect from 1st January 1993, obtain from the University of Caen a certificate of study in Norman and French Law as part of the qualification for becoming an advocate.  This requirement did not apply to solicitors.  Following strong concern expressed by the Jersey Law Society, the President of the Legislation Committee announced on 30th November 1993 that a "twin track" system would be introduced so as to produce a local alternative to the Caen requirement.  At the same time he announced that a working party would be established to review the examination syllabus for advocates and solicitors as a whole because of the concerns expressed as to the relevance of the Caen requirement."

23.      The main changes were summarised in Clause 2 of the report and at 2.2, this was said:-

"The requirement for the Caen certificate or its local alternative is repealed by the draft Law.  However the subjects to be examined in the new common examination will include the sources of Jersey Customary Law and the Jersey Law of Contract.  Furthermore it is anticipated that the new rules of court will provide for five compulsory papers together with one further optional paper from a choice of three.  It is intended that a person who obtains the Caen certificate will be relieved of the need to take the optional paper.  This will permit those who wish to attend Caen to continue to do so."

24.      Under the heading "Qualification for Solicitors and Advocates", the report continued at paragraph 2.4:-

"Bearing in mind the ever increasing complexity of legal matters and the fact that there is no structured teaching for those taking the Jersey examinations, it is felt that, as in England, those who wish to hold themselves out as qualified to advise in law should first obtain a law degree.  Accordingly the draft law provides that an aspiring solicitor must in future obtain a law degree or the common professional examination, which is the examination in law approved by the English Law Society and the Council of Legal Education for non-law graduates.  Thereafter an applicant would, as at present, have to spend three years in a local legal office and pass the necessary common examination.

2.5      Advocates already have to pass the English Bar or English solicitors examination as a pre-condition to becoming an advocate.  No change is proposed to this requirement as it is felt that it is advantageous for those who are to represent litigants before the Royal Court and the Police Court to have the benefit of this additional qualification.  However the draft law introduces a requirement that an advocate must be employed in a local legal office for two years as well as pass the new common examination."

25.      It can be seen from these passages that whereas solicitors were previously required to spend a number of years in a local legal office as well as pass the necessary common examination, advocates were not, and the requirement for employment was introduced at this time. 

26.      The explanatory note set out the changes in this way:-

"Article 3 states the requirements to be fulfilled by a person wishing to be admitted to the Bar, and broadly replaces Article 1 of the 1968 Law.  Three changes are made to the requirements -

(a)       ....

(b)       A person who is not a solicitor of the Royal Court is no longer required to obtain a "Certificat d'Etudes Juridiques Françaises et Normandes" or its equivalent.  Instead he must have been employed in an advocate's or solictor's office, the Law Officers' department or the Judicial Greffe for the two years preceding his application for admission to the Bar".

27.      The transitional provisions to be found in the third Schedule of the 1997 Law are of interest.  It is clear that a person wishing to become an advocate was not required to complete two years' employment in an advocate's or solicitor's office, the Law Officers' department or the Judicial Greffe if -

(i)        He passes either the advocates qualifying examination...... and

(ii)       Before the day appointed for the purpose he:-

(a)       obtains a Certificat d'Etudes Juridiques Françaises et Normandes from the University of Caen or;

(b)       obtains a "Certificat d'Etudes de Droit Francais et Normand from the University of Caen or;

(c)       passes the examination in Jersey Law and in law of contracts and related obligations specified in Rule 2A (2) of the 1989 Rule 

28.      It seems to us to be clear that the transitional provisions adopted in the 1997 Law created an alternative - either complete two years employment in a relevant office or obtain the Caen certificates or pass the Jersey examination known as the Caen Alternative.  The underlying assumption was that time in a relevant office would compensate for the experience that would be obtained from passing the necessary examinations at Caen or the Caen Alternative. 

29.      What is now Article 3 of the 1997 Law emerges from amendments adopted in 2007 and in 2011.  There is the addition of the requirement that the Royal Court be satisfied that the applicant is a fit and proper person to be admitted, the time period for the employment is varied so that there is a reference to two years out of the last three years preceding the application being spent employed in a relevant office, and, given that more and more Jersey firms have offices in other jurisdictions, it is made plain that at least some of the qualifying employment period can count if spent in a relevant office outside the island, provided that the certificate indicates that the person was employed predominantly in matters of Jersey law. 

30.      If it were not plain, by reason of absurdity, that Article 3 could not possibly have contemplated that employment in a relevant office was satisfied if the person was employed in the filing department or as a secretary, the Amendment in 2011 removes any doubt.  If it is possible to have degrees of absurdity, it would be even more absurd that a person was sufficiently qualified in a relevant office if employed in Jersey as a filing clerk or secretary but not if employed by the same employers in one of their offices outside Jersey unless predominantly engaged in matters of Jersey law. 

31.      It is also interesting to note that the legislature made the assumption that the advocate or solicitor certifying that the person's employment for the requisite period was "predominantly in matters of Jersey law", could be sufficient.  Even here, however, the language is difficult to construe.  The opening words of Article 3 confer an entitlement to be admitted to the Bar.  Paragraph (4) of that Article however indicates that employment outside Jersey "may" be taken to be employment in a relevant office if the person was engaged predominantly in matters of Jersey law.  That seems to assume that the certificate perhaps is not conclusive after all, but it is wholly unclear as to what form of enquiry is required to be made. 

32.      While there is an argument to be put that the paragraph which deals with an employee being "predominantly" engaged in matters of Jersey law suggests that the court does have a discretion, it appears to us that the better view is that the intention of the legislature can be ascertained from the transitional provisions introduced with the 1997 Law.  In effect, those swap the Caen certificate, or the Caen Alternative examination as the case may be, for a period of employment in a relevant office.  The States must have recognised in 1997 that the terms and conditions of employment might be different, whether insofar as maternity leave, sick leave, study leave or other periods out of the office are concerned.  It was not the case in 1997 that employment terms for aspiring advocates had been harmonised within the profession, any more than it is now.  Nonetheless, a person remains "employed" whether on maternity leave, sick leave, study leave or any other sort of leave unless the employment contract provides otherwise. 

33.      There was however the significant change in 2007 that it was sufficient to have been employed for two years out of the last three.  That amendment shows either that the States contemplated something less than full time employment or that there could be a break in the period of employment provided it was less than a year.  Thus the States must have had in mind that "employed" in Article 3 (2) (b) of the 1997 Law could mean employed on a full-time basis with up to a year's break or employed on something less than full time provided the aggregate period of employment is two years in the three year period. 

34.      With some hesitation, we construe Article 3(2)(b) to carry both possibilities set out in paragraph 33 above.  The purposive construction is that there must have been employment for two years out of the last three in a relevant office and it does not matter if that is achieved by two years' full time employment with up to a year off or something less than full time employment over a three year period where the aggregate time employed reaches the same total as a two years' full time employee. 

35.      This is the basis of our construction of the word "employed" in Article 3 (2) of the 1997 Law.  What we now need to do is to consider the Human Rights arguments advanced by Advocate Milner on behalf of the Law Society, because if there is anything sufficient in those arguments, we would have to consider whether we should not read down the law to overcome the Human Rights objections, or alternatively consider making a declaration of incompatibility. 

Human Rights

36.      Advocate Milner, on behalf of The Law Society of Jersey, submitted that if we construed the 1997 Law as requested by the Solicitor General, the court would be acting in breach of the Human Rights Law.  To the extent there was a problem in construction which she denied, it was asserted that the court should read down the 1997 Law so that it could act in a Human Rights compliant manner.  The essence of the argument was that the court was required to have regard to the interests of all workers, whether working full-time or part-time, that 16% of all workers were part time, that 80% of part-time workers were women, and that it followed that a blanket ban on qualification through part-time employment was discriminatory and not proportionate. 

37.      It was also contended that to construe the 1997 Law as requested by the Solicitor General was to be in breach of Article 2 of the First Protocol to the Human Rights Convention, which provides that no person shall be denied the right to education.  At the heart of this argument was the contention that included within the right conferred by Article 2, First Protocol, was the right to draw profits from education received, included within which would be the right to admission to the Jersey Bar so that the individual could use the education received to qualify and thus practice as an advocate. 

38.      We take the latter argument first.  It is substantially based on the case of [Application No. 44774/98] Layla Sahin v Turkey, a decision of the Grand Chamber of the European Court of Human Rights on 10^th November, 2005.  In that case the applicant came from a traditional family of practising Muslims and considered it her religious duty to wear the Islamic headscarf.  In 1997, then in her fifth year at the Faculty of Medicine at Bursa University, the applicant enrolled in the Faculty of Medicine at Istanbul University.  She had worn the Islamic headscarf during the four years she had spent at Bursa University, and she continued to do so until February 1998, when the Vice Chancellor of the Istanbul University issued a circular to the effect that students whose heads were covered and students with beards would not be admitted to lectures, courses or tutorials.  A student who attended despite this prohibition would be subject to disciplinary measures.  The applicant applied for an order setting aside the circular claiming an infringement of her rights under Articles 8, 9 and 14 of the Convention and Article 2 of Protocol 1.  Having lost in the domestic courts she applied to the European Court of Human Rights, having had to abandon her studies in Turkey and thereafter enrolled at Vienna University. 

39.      We are not concerned in this case with the complaint under Articles 8, 9 and 14 of the Convention.  The factual background is however relevant to the court's consideration of the alleged violation of Article 2 of Protocol 1.  In that connection at paragraph 152 of its judgment the court said this:-

"The right to education, as set out in the first sentence of Article 2 of Protocol No. 1, guarantees everyone within the jurisdiction of the contracting states "a right of access to educational institutions existing at a given time", but such access constitutes only a part of the right to education.  For that right "to be effective", it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed." (see the Belgian linguistic case..... see also Kjeldsen, Busk, Madsen and Pedersen v Denmark, judgment of 7 December 1976....).  Similarly, implicit in the phrase "no person shall...." is the principle of equality of treatment of all citizens in the exercise of their right to education.

153.    The fundamental right of everyone to education is a right guaranteed equally to pupils in State and independent schools, without distinction (see Costello-Roberts v The United Kingdom, judgment of 25 March 1993....).

154.    In spite of its importance, this right is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access "by its very nature calls for regulation by the State".....  Admittedly, the regulation of educational institutions may vary in time and in place, inter alia, according to the needs and the resources of the community and the distinctive features of different levels of education.  Consequently, the Contracting States enjoy a certain margin of appreciation in this sphere, although the final decision as to the observance of the Convention's requirements rest with the Court.  In order to ensure that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim.  However, unlike the position with respect to Articles 8 to 11 of the Convention, it is not bound by an exhaustive list of "legitimate aims" under Article 2 of Protocol 1 (......).  Furthermore, a limitation will only be compatible with Article 2 of Protocol No. 1 if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."

40.      It seems to us there are several reasons The Law Society of Jersey submissions cannot be accepted.  The first is that the application is for admission to the Bar, and any restriction which is applied at that point is not a restriction to the right of education.  It is a restriction to the right of practice as a lawyer.  Although we all, of course, continue to gain knowledge from year to year, the admission to the Bar is not part of that educational process. 

41.      It is no answer to this to say that the beneficiary of the right of education should "have the possibility of drawing profit from the education received" and that therefore there is a link between the employment received and the education obtained.  To accept that proposition would be to say the right to education includes a right to employment thereafter, and that cannot possibly be accepted.  In the context of the Sahin case, the judgment of the European Court of Human Rights was concerned with a factual position where the applicant continued in the course of her medical studies.  That is different from a position where a person is seeking admission to a profession. 

42.      Secondly, if we are wrong in that conclusion, then we would have to assess whether or not the interference with the right to education was for a legitimate aim.  We note that there is no exhaustive list of "legitimate aims" for the purposes of Article 2 of Protocol 1.  In our view, it would be a legitimate aim of any such interference if the purpose were to preserve and/or enhance the familiarity with both the customary law of Jersey and the workings of a professional office for those coming into the profession. 

43.      It is the case that since the introduction of the requirement to spend time in a relevant office, the training and examination process has changed.  The Institute of Law has been established as a result of which there is an amount of professional teaching in Jersey law available to students.  The exams are set and marked professionally.  These changes had already been introduced at the time the last amendments to the 1997 Law were adopted.  It seems to us that we have to assume that the States did not consider that the introduction of the Institute of Law made a material difference to the requirement that there should be a period of time spent in a relevant office even if it had been considered that there was then good reason for a lesser period to be selected.  If the States had been of that view, it seems to us to follow that the requirement would have been repealed, rather than amended. 

44.      The Island has a margin of appreciation in this area.  In our judgment, there is no doubt that the purpose of the introduction of a required amount of time to be spent in a relevant office was to ensure familiarity with the customary law of Jersey, picked up not academically but by practice. 

45.      The next question is whether there is a reasonable relationship of proportionality between a blanket requirement for full-time employment in a relevant office and the legitimate aim which that requirement is intended to achieve.  On the assumption, as we have said, that one is considering whether the Article 2 Protocol 1 right has been interfered with at all, we consider that the interference is proportionate.  There is a requirement for full-time employment but only for two years out of the last three.  We do not think that an argument around maternity leave or study leave or indeed any other sort of leave is relevant for these purposes.  A person who has a full-time job and subsequently takes maternity leave or study-leave remains in full-time employment.  Of course there is something of a broad brush which is being applied in this context, but nonetheless the broad brush appears to us to fit better the legitimate aims of the legislation than any other outcome, which does not fit those aims at all.  We put to Advocate Milner the possibility of a person being employed on a zero hours contract.  We understood her to give more than one answer to this difficult question but in substance the answer appeared to be either that a person employed on a zero hours contract was not working according to a contract of employment, which seems to us to be perhaps surprising, or that if employed on a zero hours contract, then that person was still employed and the requirement in the 1997 Law was therefore met.  Yet it is clear that a person employed on a zero hours contract might have done no work at all, and indeed might not even have had to turn up to the office for much or perhaps any of the relevant period. 

46.      Insofar as discrimination against women is concerned, one has first of all to establish which convention right is engaged before considering the Article 14 anti-discrimination provision.  For the reasons we have given, we do not think the Article 2 Protocol 1 right, which is the right on which we were substantially addressed, is engaged, but even if it were, the interference with it seems to us to be proportionate even if the effect might be felt more keenly by women than by men because there is at present a higher percentage of women in part-time employment. 

47.      For all these reasons, the court considers that the first respondent is not qualified.  We reach that conclusion with some regret, of course, because she has undoubtedly spent a good deal of time and energy in achieving the academic qualifications.  However, given the legislation as it now stands, we add that if there were a discretion vested in the court as to whether or not the line had been crossed so that the applicant could be treated as qualified, the court by a majority would not have so treated her.  This is because she has simply not spent enough time, on the facts, in a relevant office for us to be satisfied that the legitimate aims of the requirement in the 1997 Law have been met.  However, we emphasise that is not the basis of the decision today, because we do not think we have a discretion to exercise. 

48.      As we indicated earlier, this legislation cries out for review.  There does not seem to be much doubt that since it was passed there have been increasing numbers of women entering the profession, and furthermore that there have been increasing numbers of women in a position to qualify albeit that by virtue of starting a family or other considerations of a personal nature, they are inclined to take part-time rather than full-time work.  The Law Society of Jersey clearly thinks that the legislation ought not to be framed in the way that it is, and it is for that Society to press its case for reform with the appropriate political representatives.  For our part, we think that the legitimate aims of the legislation should be:-

(i)        To provide a clear framework so that people embarking on a process to achieve qualification as a Jersey advocate or solicitor know precisely what hurdles have to be surmounted. 

(ii)       To ensure that an appropriate academic standard is met so that the integrity of the law of Jersey is preserved.  Advocates and solicitors in giving advice to their clients, and in the contentions which they put before the courts of this island, play an important part in preserving the distinctiveness of our heritage and our rights and freedoms. 

49.      It may be that working in a relevant office has two legitimate purposes - the first is to ensure a practical knowledge of Jersey customary law, and the second is to ensure a general familiarity with the office environment, and with the standards which have to be applied in attending to clients and to their property.  Respect for the law in our community depends not just upon respect for the courts but also respect for lawyers.  How they deal with their clients and their clients' property forms an important part of respect for the law, and it is very much in the interests of our community that those inside and outside the island should have that respect.  It may be said that in relation to the former of these legitimate purposes, the structure of many law firms these days requires specialisation in particular areas which make exposure to Jersey customary law unlikely for many of those who qualify.  If an aspiring advocate works in a relevant office in one of the financial services areas of funds, pension administration, banking or securitisation, it may well be unlikely that much customary law will be involved.  On the other hand, there may even so be some experience which is picked up at the margins which would otherwise not be available.  These of course are all matters for the legislature and The Law Society of Jersey to consider. 

Authorities

Advocates and Solicitors (Jersey) Law 1997.

Human Rights (Jersey) Law 2000.

Loi (1955) Sur L'Admission au Barreau.

Loi (1880) sur la propriété foncière.

Loi (1891) sur la partage d'héritage.

Advocates (Jersey) Law 1968.

Advocates (Amendment Number 2)(Jersey) Law 1990.

Layla Sahin v Turkey.App No 44774/98.