In December 2014 the Royal Court of Jersey heard a case concerning an application for admission to the Jersey Bar. By way of background, Jersey is the largest of the Channel Islands. In 2004 the island celebrated 800 years of independent legal tradition. The island’s locally-qualified lawyers fall into two categories, advocates and solicitors, the former having rights of audience in the courts. The integrity and quality of the island’s legal system are matters of the utmost importance. Advocates provide a service to the public, not least in accepting the “legal aid burden”, a pro bono obligation which endures for 15 years post-admisssion. It is vital that a person wishing to be admitted to the Jersey Bar has proven him/herself competent to be admitted, with “a sufficient knowledge of the laws and customs of this island.”
Criteria for admission as an advocate have been set down in legislation, the present requirements being found in the Advocates and Solicitors (Jersey) Law 1997 (the “Law”). These include the following:
- the Royal Court must be satisfied that the person is a fit and proper person to be admitted;
- the person must have passed specified examinations including the Jersey qualifying examination; and
- “…in the period of 3 years immediately preceding the person’s application for admission to the Bar…, the person has been employed for a period of, or periods totalling, 2 years in a relevant office or in more than one such office.” (Article 3(2)(b).)
The case arose because, on applying for admission, the Applicant notified the Attorney General that she worked part-time (approximately 14 hours per week in the relevant period). The decision as to whether any applicant should be admitted to the Jersey Bar is one for the Royal Court. The Attorney General therefore brought the representation, asking the Royal Court to make a finding as to whether, given the part-time nature of the Applicant’s employment, she met the criterion under Article 3(2)(b) of “…[having] been employed for a period of, or periods totalling, 2 years in a relevant office…”
The case put forward on behalf of the Attorney General, which was accepted by the Royal Court, was that “employment” in this context had to mean “full-time employment” because:
“…it was absurd to think that the States [of Jersey] 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…”
On behalf of The Law Society of Jersey it was argued that the Attorney General’s case found ambiguity where there was none. The word “employment” was an inclusive, not an exclusive, term, covering a raft of types of employment relationships including full-time and part-time work. The Attorney General’s case, if successful, would automatically lead to a blanket-ban on the admission of part-time workers to the Jersey Bar. Given that 80% of the island’s part-time workers were women, this would constitute indirect sex discrimination against women. In 2014 the island had no specific sex discrimination legislation, but only months earlier had implemented a new, over-arching discrimination law. Indirect discrimination was now a prohibited act, but in relation to race discrimination only, with further sex discrimination provisions due to be implemented in 2015. In the circumstances, was there any statutory protection upon which the Applicant could call?
The European Convention on Human Rights formed part of Jersey law. While Article 14 of the Convention prohibited sex discrimination, it only applied in respect of “the rights and freedoms set forth in this Convention” and provided no general, free-standing protection from discrimination.
Article 2 of the First Protocol to the Convention (the “Article”) provided that no person shall be denied the right to education. The European Court of Human Rights confirmed in Layla Sahin v Turkey (2005) that the Article applied to higher education and that:
“For that right “to be effective”, it is…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.”
The case for The Law Society of Jersey was that the Article applied to an application for admission to the Jersey Bar, given that admission constituted the ultimate recognition that a candidate had completed the Jersey qualifying examination. That recognition was the determining factor which enabled a person to practice as an advocate. Accordingly, such recognition was essential if, in relation to that examination, a person was to be able to “[draw] profit from the education received”. Applying the Attorney General’s interpretation of the Law would be incompatible with the Convention and unlawful.
The Royal Court distinguished the present case from Sahin. It did not accept that the Article applied to a person seeking admission to a profession. Even if the right to education did apply, the European Court had acknowledged that this was not an absolute right, saying:
“…[The] Contracting States enjoy a certain margin of appreciation in this sphere…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…[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.”
The Royal Court held:
“…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.”
It took the view that any interference with the Applicant’s rights in this regard were proportionate, given the importance of maintaining proper professional standards, which was the motivation behind Article 3(2)(b). Having decided that the Convention right to education was not engaged, Article 14 of the Convention did not come into play. The Royal Court emphasised that “this legislation cries out for review” and that:
“Respect for the law in our community depends not just upon respect for the courts but also respect for lawyers.”
Advocate Vicky Milner of Callington Chambers appeared for The Law Society of Jersey.