Prescott, R (On the Application Of) v General Council of the Bar [2015] EWHC 1919 (Admin)

[2015] EWHC 1919 (Admin)Case No CO/5859/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Venue Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Venue BirminghamDate Tuesday 7 th July 2015
Before
MR JUSTICE HICKINBOTTOM
Between
THE QUEENClaimanton the application of STEVEN PRESCOTTClaimantTHE GENERAL COUNCIL OF THE BARDefendantTHE UNIVERSITY OF LAW (BIRMINGHAM)Interested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
James Dixon and James Fraczyk (instructed by way of Direct Access) for ClaimantAlison Padfield (instructed by BLM LLP) for DefendantThe Interested Party neither appearing nor being representedHearing Hearing date: 30 June 2015
Judgment

Introduction

[1]The Claimant is a law student, who wishes to become a barrister. Over two sittings, he has passed all relevant parts of the vocational stage of training, the Bar Professional Training Course (“BPTC”), except the Opinion Writing module which he has failed twice. Under the BPTC requirements, although he may undertake the entire course again, he is unable to retake that discrete part a second time. In this claim, he challenges those regulatory requirements, and the refusal of the Defendant (“the Bar Council”) to exercise any discretion outside the regulations, that have prevented him from proceeding to the next stage of his training (the professional stage, or pupillage) without redoing the entire BPTC.[2]Before me, James Dixon and James Fraczyk appeared for the Claimant, and Alison Padfield for the Bar Council. I thank them all for their respective contributions.

The Regulatory Scheme

[3]Certain legal activities (including the exercise of the right of audience) can only be carried on by legal professionals authorised to carry on that activity in accordance with the provisions of the Legal Services Act 2007 (“the 2007 Act”), which sets out a detailed scheme for the regulation of such persons.[4]Section 2 of the 2007 Act creates a body corporate, the Legal Services Board (“the LSB”), to regulate the legal services professions. Section 3 imposes an overarching duty on the LSB to promote its “regulatory objectives”, defined by section 1(1) to include protecting and promoting the public interest (subsection 1(1)(a)), protecting and promoting the interests of consumers (subsection 1(1)(d)) and promoting and maintaining adherence to the “professional principles” (subsection 1(1)(h)). The “professional principles” set out in section 1(3) include: “[A]uthorised persons should maintain proper standards of work” ((subsection 1(3)(b)).[5]By section 4, the LSB has an obligation to assist in the development and maintenance of standards in relation to(a) the regulation by approved regulators of persons authorised by them to carry on activities which are “reserved legal activities”, defined in section 12 to include the exercise of the right of audience, and(b) the education and training of persons so authorised. For its part, an approved regulator must, so far as reasonably practicable, act in a way (a) which is compatible with the regulatory objectives, and (b) which the approved regulator considers most appropriate for the purpose of meeting those objectives (section 28(2)). In carrying out its functions, it must have regard to (a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and (b) any other principle appearing to it to represent the best regulatory practice (section 28(3)).[6]The LSB is an overarching regulator: it regulates other approved professional regulators. It is for those approved regulators to exercise various regulatory functions in relation to its profession, including those relating to admission. A duty therefore falls on such regulators to set standards for its profession (including standards of competence), and how individuals who wish to become or remain members of the profession may satisfy the regulator that they meet the standards set.[7]The Bar Council is such an approved regulator for the purposes of the 2007 Act (Schedule 4). It exercises its regulatory functions, including those relating to admission to the profession and education/training, through a board which is ring-fenced from the Bar Council’s other activities but which has no separate legal personality, namely the Bar Standards Board (“the BSB”). Barristers who are registered with the Bar Council are “authorised persons” for the purposes of section 1(3) (section 18). As such they are entitled to exercise a number of reserved legal activities, including the right of audience.[8]The BSB performs its functions through several committees, which report to the BSB Board. The Qualifications Committee is responsible for looking at individual applications from people wishing to become barristers. The Education and Training Committee is responsible for setting the standards of education and training that an individual must reach before he or she is able to practise as a barrister, together with the further continual training requirements with which barristers must comply. The BPTC Sub-Committee reports to the Education and Training Committee on matters relating to the vocational stage of training.[9]The education and training requirements for a barrister are set out in the Bar Training Rules (“the BTR”), which are found in Section B of Part 4 of the Bar Handbook. The purpose of the BTR is to “ensure that any person who qualifies to practise as a barrister is a fit and proper person, and competent to do so” (paragraph oQ1).[10]To qualify as a barrister involves a multi-stage process. Paragraphs rQ4-6 of the BTR provide: “4. To be called to the Bar by an Inn a person must: 1. be a member of that Inn; 2. complete (or be exempted from)(a) the Academic Stage, and(b) the Vocational Stage of training; and 3. fulfil any applicable requirement to attend qualifying sessions. 5. To become qualified to practise as a barrister a person must: 1. be called by an Inn; 2. complete (or be exempted from) the Professional Stage of training; and 3. satisfy such further requirements as are set out in Part 3 of this Handbook. 6. The [BSB] may charge such fees as it prescribes for dealing with applications, conducting assessments or examinations and issuing certificates under Section 4B.” (a) the Academic Stage, and (b) the Vocational Stage of training; and 1. be called by an Inn; 2. complete (or be exempted from) the Professional Stage of training; and 3. satisfy such further requirements as are set out in Part 3 of this Handbook.[11]Therefore, under paragraph rQ4.2(b), to progress to pupillage, a student has either to complete or be exempt from the vocational stage.[12]For these purposes, a person “completes” the vocational stage of training on being certified by the relevant course provider that he has successfully completed a BPTC. The BSB publishes “BPTC Course Specification Requirements and Guidance” in the form of a handbook (“the BPTC Handbook”), colloquially known as “the Blue Book”, a substantial volume of nearly 200 pages. The version which applied in the academic year in which the Claimant undertook the BPTC was the 2012-13 version, published in September 2012, and the particular references below are to that version; but the current BPTC Handbook 2014-15 is in materially the same terms.[13]As I have indicated, subject to the exemption provisions, an individual can only progress to the next stage of training (i.e. pupillage) if he has successfully completed a BPTC. Thus, at paragraph A1.2.1, under the heading “Professionalism and Educational Values”, the BPTC Handbook said:
“The BPTC must reflect the requirement of this stage of training in terms of…the standards that are to be attained by students before they can be recognised as having successfully completed the course.”
[14]At paragraph A1.2.3, under the heading “Ethos”, it said:
“The qualities needed for a career at the Bar are a mixture of attributes of temperament and of talent. As highlighted in the Bar Council of England and Wales’ Final Report of the Working Party on Entry to the Bar (November 2007), these include a combination of honesty, courage, commitment, common sense, and perseverance, as well as analytical skills, intellect, persuasiveness, organisational skills, good judgment and fluency…. The ethos of the BPTC is to nurture and develop to a high level those existing attributes in candidates.”
[15]Under the heading “Principles of the BPTC”, paragraph A1.3.1 said:
“The ethos of the course requires a method of delivery that: • provides students with opportunities for learning by doing, and requires students to apply their knowledge in practical work • requires students to play an active role in the course and to take responsibility for their own learning • requires students to reflect on their own learning • seeks to inculcate a professional approach to work and to develop in students a respect for the principles of professional ethics and • seeks to provide students with an informed view of a barrister’s working life.” • provides students with opportunities for learning by doing, and requires students to apply their knowledge in practical work • requires students to play an active role in the course and to take responsibility for their own learning • requires students to reflect on their own learning • seeks to inculcate a professional approach to work and to develop in students a respect for the principles of professional ethics and • seeks to provide students with an informed view of a barrister’s working life.”
[16]In keeping with these high level objectives, courses comprise both formative assessments over the whole period of the course, and final examinations. They are delivered by various providers – of which the Interested Party (“the UoL”) is one – which are required to have their courses approved by the BSB in accordance with Part B2 of the BPTC Handbook and the curriculum framework set out in Part A2.[17]The BPTC curriculum 2012-13 was made up of the following main elements (see paragraph A2.1.1 of the BPTC Handbook):
“1 Professional Ethics and Conduct 2 The Knowledge Areas: • Civil Litigation, evidence and remedies • Criminal Litigation, evidence and sentencing • Profession ethics 3 The Skills Areas: • Advocacy • Opinion Writing • Drafting • Conferencing • Resolution of Dispute out of court (including negotiation, mediation and arbitration) 4 The Options”
These were to be assessed by a combination of formative assessments and final examinations, which were each subject to distinct regimes, details of which were set out in the BPTC Handbook. • Civil Litigation, evidence and remedies • Criminal Litigation, evidence and sentencing • Profession ethics • Advocacy • Opinion Writing • Drafting • Conferencing • Resolution of Dispute out of court (including negotiation, mediation and arbitration)[18]Paragraph A2.1.1 was followed by a discrete section for each of these elements, which set out, for that element, the description/rationale, aims and objectives, intended learning outcomes, teaching and learning strategies, means of assessment, indicative content/teaching schedule, and reading/reference.[19]For the assessment of Opinion Writing, paragraph A2.2.5(e) provided:
“Assessment must consist, as a minimum, of one formal unseen time-constrained invigilated examination (where ‘open book’ materials may be used as specified in advance)…. In addition, at least five opinions covering a broad range of scenarios should be undertaken by students as formative exercises. Each exercise must require the application of legal research and legal knowledge, and on each of the six occasions, the student must receive individual feedback from the tutor. Poor English, grammar and syntax must be penalised.”
Therefore, the skill of Opinion Writing was required to be tested by at least (i) five opinions, without any specific constraints on time or facilities, undertaken as formative exercises; and (ii) one formal unseen time-constrained invigilated examination.[20]Paragraph A2.1.5 set out the general grading descriptors for each individual assessment. There were three pass grades, namely “Outstanding” (85-100%), “Very Competent” (70-84%) and “Competent” (60-69%). Students in each of those categories were, with the additional training and supervision in pupillage, considered at least competent and able to represent lay clients/members of the public. A student who obtained 0-59% was classified as “Not Competent”, which was described in the following terms:
“Does not satisfy the threshold requirement of the course. Work is inarticulate and of poor standard, faulty and badly expressed. The candidate is assessed as not (with the additional training of the ‘first six’ of pupillage) capable of producing work on which a prospective client could rely.”
On a re-sit, the mark was capped at 60%, i.e. if the candidate obtained a mark of 60% or more, he passed but the mark was capped at that level when aggregating marks for the purposes of assessing the overall result. If he did not obtain a mark of 60% or more, he failed the BPTC.[21]Paragraph B4.11.1.2, under the main heading “Failure, non-attempt and re-assessment” and sub-heading “General principles”, said: “Failure in any assessment gives the right to one further opportunity to retake the failed assessment(s)… If there are two parts to a single assessment then it must be retaken as a whole even if only one part is failed…. A maximum of a total of two attempts shall therefore be permitted for any single assessment, excepting where documented and accepted extenuating circumstances… have caused an attempt to be assessed ‘as if for the first time’. Where the course has been failed due to marginal failure in one re-sit only [at 57-59.9%...] or due to a Red Light fail in one re-sit only, then one further re-sit in that failed assessment will be permitted…”.[22]Paragraph B4.11.1.4 said:
“Where an assessment has been failed on two occasions, then the candidate shall be recorded as having failed the course. Where there are extenuating circumstances, and a ‘first sit’ has been allowed, then the number of attempts will be considered accordingly, but no more than two attempts (not affected by extenuating circumstances) will be allowed, excepting in circumstances detailed in 4.11.1.2 above. A candidate who fails the course in its entirety in this way will be permitted subsequently to apply for and retake the course (if the application is successful) ab initio at the same or a different Provider.”
[23]Paragraph B4.11.4, under the heading “Compensation for Failure”, emphasised that:
“Under no circumstances may a student’s overall performance on the course compensate for partial failure in an assessment for the BPTC. All components of the course must be taken and passed satisfactorily.”
[24]Paragraph B4.11.2 concerned the so-called “Red Light Rule”, which means that a candidate may fail irrespective of the marks obtained, because of an error which would put a client’s interests at risk. The rule has no relevance in this case.[25]Paragraphs B4.11.5-6 set out detailed provisions for extenuating circumstances that have, in the opinion of the board of examiners, affected the individual’s performance in one or more assessments or prevented the undertaking of an assessment. If extenuating circumstances were found to exist, then the board of examiners had a discretion to disregard the result and offer the student the opportunity to sit the assessment(s) as a first attempt of that sitting (paragraph B4.11.5.1). The Claimant has never suggested that the extenuating circumstances provisions apply to him.[26]Exemptions from the vocational stage training requirements are dealt with in Section B7 of the BTR. Paragraphs rQ79-81, so far as relevant, provide:
“79. The [BSB] may grant exemptions from part or all of… the vocational stage… of training. 80. In exercising its discretion whether to grant an exemption from part or all of any Stage of training, the [BSB] will determine whether the relevant knowledge and experience of the applicant make it necessary for the applicant to do such training. 81. An exemption from part or all of any Stage of training may be granted unconditionally or subject to conditions, which may include in an appropriate case: 1. a requirement to do training instead of the training prescribed by this Section 4B; and/or 2. a condition that the applicant must pass the Bar Transfer Test.” 1. a requirement to do training instead of the training prescribed by this Section 4B; and/or 2. a condition that the applicant must pass the Bar Transfer Test.”
[27]On its face, that is a very wide discretion. However, where the BSB is satisfied that an applicant has been granted rights of audience in courts of England & Wales by another authorised body or falls within another identified category of qualified lawyer, it is required to (“must”) exempt the applicant from any prescribed training requirements of the vocational stage that the applicant has not fulfilled (paragraphs rQ86-7 and 96-7).[28]Applications for exemption from training requirements under these provisions must be made on the form prescribed by the BSB, and must be accompanied by the appropriate fee (paragraph rQ83). They are considered by a panel of the Qualifications Committee known as the Transferring Qualified Lawyers Panel (“TQL Panel”) which, despite its name, has a remit wider than considering applications for exemption from qualified lawyers who wish to transfer to the Bar. Paragraphs 9.5-9.6 of the Panel’s published Criteria and Guidelines state: “9.5 The Panel will have principal regard to the following:9.5.1 The grant of an exemption from part or all of the three Stages of training is a discretionary and exceptional course, because the BTR provide that the Stages must be completed in full.9.5.2 In exercising any discretion whether to grant an exemption, the Exemptions Panel will determine whether the relevant knowledge and experience of the applicant make it unnecessary for the applicant to undertake such training. 9.6 Because of the wide-ranging nature of potential circumstances which might suggest that an application is exceptional, it is not possible to set out any definitive guidance as to particular instances when the Qualifications Committee would be prepared to exercise its discretion and grant an exemption. The Committee will take into account all particular circumstances of the case in coming to a decision.” 9.5.1 The grant of an exemption from part or all of the three Stages of training is a discretionary and exceptional course, because the BTR provide that the Stages must be completed in full. 9.5.2 In exercising any discretion whether to grant an exemption, the Exemptions Panel will determine whether the relevant knowledge and experience of the applicant make it unnecessary for the applicant to undertake such training.[29]Thus, the exemptions provisions give the TQL Panel a discretion broad enough to enable a student who fails a vocational stage assessment to apply to the panel for exemption from that part, and it is open to the panel to grant that exemption unconditionally or upon condition that (e.g.) the individual re-takes and passes part of the course or assessment, e.g. the Opinion Writing module. However, as the exemption itself makes clear, this will be an exceptional and thus rare course, because the BTR and BPTC Handbook require that the stage must be completed in full in two sittings as necessary evidence of competence to progress to pupillage. Given the provisions in the BPTC (e.g.) with regard to extenuating circumstances and near-misses, it is unsurprising that the BSB regards it as inherently unlikely that a candidate who fails the BPTC would persuade the TQL Panel that he should be exempted from the requirements that are intended and designed to evidence competence going forward but which he has not satisfied.[30]Indeed, although such applications have been made to the TQL Panel by students who have failed part of the course, to date they have all in fact been refused (see paragraph 44 of the statement of Simon Thornton-Wood dated 16 March 2015: Dr Thornton-Wood is the Bar Council’s Director of Education & Training, and heads the BSB’s Education & Training Department).

A Historical Perspective on Re-sits

[31]That was the regulatory position at the relevant time – 2012-13 – which has not materially changed. However, for the proper consideration of this claim, it is necessary briefly to look at how the current regulatory position with regard to examination re-sits has developed.[32]Until 2000, the vocational stage of a barrister’s training was heavily loaded towards final examinations, and it was possible to re-sit those examinations more than once. That led to concern about the competence of all those candidates who successfully passed the vocational stage and moved on to pupillage.[33]In the period 2000-07, the Bar Council set up a number of groups and working parties to consider the training of barristers and the content of the BPTC (then known as the Bar Vocational Course (“BVC”)). In 2000, a Committee chaired by Sir Patrick Elias set the content for the BVC. In October 2004, a working party under Professor John Bell of Cambridge University performed extensive consultation and reported on the training of barristers; and that was followed by a working party under the chairmanship of Richard Wilson QC which reviewed the Bell Working Party evidence and reported to the Bar Council in a final report in April 2008. A working group under Lord Neuberger examined entry and access to the Bar, including training through its various stages, in a final report in November 2007 (“the Neuberger Report”).[34]In October 2007, the BSB established a further working group to examine and report on the BVC. The group comprised experienced barristers and academics, and was chaired by Derek Wood QC (a former Principal of St Hilda’s College, Oxford) so that the group’s final report is known as the “Wood Review”. In addition to producing the Wood Review, the working party recommended a change of name from the BVC to the BPTC, and redrafted the BVC Handbook as a new BPTC Handbook.[35]The Wood Review considered the cost of the BVC, and whether the cost could be limited by (e.g.) reducing the course requirements. It found that it could not.[36]The Review particularly considered the effect of repeated re-sits on the standard of competence of barristers who ultimately succeeded in passing the BVC. At the time of the Review,(i) “Competence” in any assessment was set at a mark of 50%, and(ii) candidates were able to re-sit multiple times. In his statement, Dr Thornton-Wood set outs, uncontentiously, the relevant results of the Wood Review, as follows:
“24. The Wood Review said (at paragraphs 137-141) that the Neuberger Report said that students who had passed the BVC at the basic level of ‘Competent’ were not viewed as competent by practitioners, and that the Wood Working Party supported that view; that under the (then) present system a piece of work which attracted 50% marks was classed as Competent even though by definition a significant proportion of the work was well below that level; and what counted as ‘Competent’ in a professional context must be in the Working Party’s view be judged by professional point of view; and that work which was competent must be a recognisably professional piece of work offered by a newly-called barrister; and that, in quantitative terms, that meant a standard well in excess of 50%. 25. The option to re-sit assessment was considered by the Wood Review. At paragraph 73, the report states: ‘Many of the students who fail first time round will pass after re-sits, which may be taken more than once. As a result of re-sits ultimate overall pass rates rise dramatically.’ 26. At paragraph 25, the report recommends: ‘We recommend that students who fail should be allowed one re-sit only.’ 27. That recommendation was adopted as part of the framework of the BPTC when it replaced the BVC.” ‘Many of the students who fail first time round will pass after re-sits, which may be taken more than once. As a result of re-sits ultimate overall pass rates rise dramatically.’ ‘We recommend that students who fail should be allowed one re-sit only.’ 27. That recommendation was adopted as part of the framework of the BPTC when it replaced the BVC.”
[37]The Wood Review thus concluded that the then-current BVC scheme failed to set the standard for competence in the vocational stage of training high enough, so that some candidates who had not sufficiently evidenced the requisite knowledge, skills and attributes were allowed to progress to the professional stage. The raising of vocational stage standards was “universally regarded as necessary” (BSB Education and Training Committee Minutes of 10 January 2012).[38]The Review therefore recommended three things: i) The “pass” mark should be raised from 50% to 60%. ii) Candidates should be allowed to re-sit assessments/examinations only once. iii) If a candidate failed an assessment/examination after re-sitting once, then he should be prohibited from retaking the course. In other words, such aspirants were prevented from ever becoming barristers. Those recommendations were implemented by the Bar Council through the BSB.[39]However, following a review of the first year of the BPTC, further consultation with BPTC providers and further consideration by the BPTC Sub-Committee, on 10 January 2012, the BSB Education and Training Committee determined to amend the scheme, so that, in addition to candidates being able to re-sit once:
“People who have failed the course may take it again ab initio (subject to acceptance on a course by a provider).”
The BPTC Handbook was amended accordingly, as reflected in paragraph B4.11.1.4 (quoted in paragraph 22 above).

The Bar Council’s Functions

[40]It would be helpful at this stage to draw together some matters that relate to the functions of the Bar Council under the regulatory scheme.[41]As can be seen, by virtue of a scheme which has Parliamentary sanction, the Bar Council through the BSB has the function of setting requirements for entry into the profession of barrister. The criteria set by the BSB may include a minimum requirement to pass an assessment/examination, even if that requirement brooks no exception (R v The Specialist Training Authority of the Medical Royal Colleges (Case No CO/1442/1998: Unreported, 5 November 1998) (“the STA case”).[42]The setting of requirements to ensure that appropriate standards of competence are maintained within the profession involves a particular exercise of judgment, professional and academic. It has been said of such judgments that they are non-justiciable, i.e. it is inappropriate for a court to consider them (see, e.g., Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at [12] per Sedley LJ and at [29] per Lord Woolf MR; Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) at [58] per Burnett J (as he then was); and R (Mustafa) v The Office of the Independent Adjudicator for Higher Education [2013] EWHC 1379 (Admin) at [49] per Males J). In the field of education and training, judgment is not restricted to matters directly affecting an individual student’s performance (R (Cardao-Pito) v The Office of the Independent Adjudicator for Higher Education [2012] EWHC 203 (Admin), a case concerning the suitability of a particular examiner, at [22] and [33]-[34] per His Honour Judge Gilbart QC sitting as a Deputy High Court Judge, as he then was). That “hands off” approach is of course subject to usual public law principles, including the proposition that the court may interfere if the requirements set are unreasonable or irrational in the Wednesbury sense. However, given the nature and number of the factors relevant to any judgment as to what requirements are necessary to ensure that standards of professional competence are, in the public interest, appropriately rigorous, the range of reasonable decisions in this context must be especially wide.[43]Therefore, adopting the words of the penultimate paragraph of the judgment of Dyson J in the STA case, the BSB was entitled to specify certain minimum criteria which it would insist had to be satisfied by every applicant as a condition of satisfying the test of competence sufficient to proceed to pupillage, provided that those criteria were authorised by the statutory scheme and were not unreasonable in the Wednesbury sense.[44]The BSB did have the power to impose such requirements, that power emanating from the 2007 Act. The BSB had a duty to set appropriate criteria which, in its judgment, ensured that a candidate evidenced appropriate skills and attributes before entry into the profession, including those required at the vocational stage before progressing further: and it had a wide discretion as to the nature and form of the precise requirements, clearly empowering the BSB to require all candidates to pass specific assessments or examinations. There is no Wednesbury challenge in this claim; but, in any event, the provisions of the vocational stage of training were considered with patent care by a number of working groups which included experienced and eminent members, and it could not be argued that the requirements for the BPTC are irrational or legally perverse. Those requirements (including, in particular, the restrictions as to re-sits, and the provision that failing an assessment twice results in deemed failure of the whole BPTC and the requirement to re-take the whole course again) were adopted specifically to address the deficiencies in the previous scheme, which allowed multiple re-takes of individual examinations which (it was considered by the Wood Review) led to individuals proceeding to the next stage of pupillage although they had not properly evidenced sufficient competence – i.e. had not demonstrated that, after six months’ pupillage, they would be ready to advise members of the public. The Wood Review concluded – and the BSB agreed – that competence in that sense could only usually be demonstrated by an individual passing each element of the BPTC during the period of a single course and one re-sit. That too was a judgment to which the BSB was clearly entitled to come.[45]Once it is accepted that it is necessary – or at least reasonable – to set a standard for professional competence, wherever that standard might be set, some students will satisfy the standard and some will not. It is inevitable that some will fail to attain it by a narrow margin. Whether a standard is attained is a binary question, in respect of which there is no “near miss” principle (Patel v Secretary of State for the Home Department [2103] UKSC 72).[46]As the STA case shows, it is open to a regulator to require an individual to pass certain examinations before being allowed to enter a profession as a minimum requirement without exception. It is therefore clearly lawful for a regulator to make such a requirement, subject to exceptions. In this case, the BSB ameliorated the absoluteness of that requirement in a number of ways: by allowing a re-sit on the basis of extenuating circumstances, by allowing one re-sit of failed parts, by allowing a second re-sit in the event of a marginal fail and by allowing an application for exemption, in addition to allowing (after the scheme amendments in October 2011) the re-taking of the entire course.

The Claimant

[47]The Claimant is aged 48. He has had a variety of jobs. For many years, he worked at British Leyland, Longbridge. However, he began teaching in 1999. Following a calling as a teenager, in 2000, after many years of endeavour, he became a minister of religion. In 2004, he resigned from that post. He retrained as a construction project manager, but unfortunately lost his job as such in 2010. He then began a business to assist people without jobs to become ready for work, and get a job. Shortly afterwards, he decided that he wished to be a barrister. He refers to it in terms of a vocational calling.[48]The first step was the academic stage of training. The Claimant attended a two-year fast-track law degree course at Staffordshire Law College, being awarded that degree at the end of the course.[49]He then progressed to the vocational stage, and attended the BPTC at the UoL from September 2012. He says that a key area in respect of which he foresaw difficulties was Opinion Writing. In particular, he found the requirement to “research [a] legal area and for us to necessarily conclude what the law is before responding to the professional client in constrained time conditions and without being able to talk to our peers or lecturers”, prerequisites of the time-constrained unseen opinion writing exercise, to be unreasonable, irrational and very unfair (paragraph 12 of his statement dated 9 December 2014). In any event, he said: “Of all the modules this was the one that present real challenges to me and was my Achilles heel.” (paragraph 3 of the same statement).[50]In respect of his first board (the July 2013 Board), the Claimant obtained Competent or Very Competent grades in all subjects but four, namely Advocacy 2, Civil Litigation, Criminal Litigation and Opinion Writing. He re-sat those four assessments in November 2013, and obtained a mark of over 60% in three, but a mark of only 46% for Opinion Writing. That fell very far short of the 60% required to pass, or even the 57% required to give him the opportunity to have a “near miss” second re-sit. As a result of failing to obtain a mark of 60% in respect of Opinion Writing twice, the Claimant failed the BPTC as a whole.[51]Correspondence ensued between both the Claimant and the UoL, and between the Claimant and the BSB. The UoL responded on 4 November 2013 in terms that it was bound by the regulations, which were to the effect that, if you failed even one assessment at a re-sit, then you are deemed to have failed the course as a whole. The Claimant was offered a place with the UoL to retake the course.[52]However, because of the potentially prohibitive cost of the course, on 4 September 2014 the Claimant wrote to the BSB asking for the exercise of discretion to allow him to undertake (and consequently pay for) only the part of the BPTC he had in fact failed. He said:
“I am in pursuing this matter on the following two grounds: 1. In my particular circumstances the rationality, fairness or reasonableness of designating my course result as Not Competent. 2. In my particular circumstances the rationality, fairness or reasonableness of the requirement to re-take the whole course and pay the full fee in order to practice [sic] at the Bar.”
These have consistently been the two principal features of the Claimant’s complaints to the BSB, and his challenge before this court.[53]The BSB Vocational Training Administrator responded by email on 15 September 2014, to the effect that it was for the UoL to assess and consider the Claimant’s competence in relation to Opinion Writing; and, if the Claimant had issues with the way in which the subject was taught (as it appeared from his letter that he had), then that was a matter that he should take up with the UoL through its complaints procedure. Details of that procedure were given.[54]Further correspondence did not move matters forward. Indeed, as Mr Dixon stressed, the Bar Council did not respond to the Claimant’s pre-action protocol letters of 14 October and 28 November 2014.

The Claim

[55]The Claimant issued this claim on 12 December 2014. A number of grounds were relied upon, but focused on two core alternative submissions, namely (i) the Bar Council through the BSB erred in law in not accepting that, despite having failed the Opinion Writing module twice, he had satisfactorily demonstrated opinion writing skills and that he had the relevant skills and attributes to enable him to progress to the professional stage of training; or (b) if he had not demonstrated those matters, then the BSB ought to have exercised its discretion to enable him to re-take only part of the BPTC, namely the Opinion Writing module. In fact, it was submitted, the BSB has not exercised its discretion outside the regulations at all. The Bar Council responded shortly in its Summary Grounds, to the effect that this claim was premature – because it was open to the Claimant to apply to the TQL Panel of the Qualifications Committee for an exemption from the vocational stage requirements, which the Claimant had not done.[56]Gilbart J gave permission to proceed on 6 February 2015.[57]Before me, Mr Dixon relied upon a number of interrelated grounds, the main strands of which were as follows. I have, for convenience and good order, separately identified them by number – although these numbers are of my own making, and Mr Dixon was at pains to stress the inter-relatedness of the grounds. Ground 1: The Claimant has already in fact shown himself competent in opinion writing, as evidenced in particular by his “Very competent” grade in his Personal Injury option which required the writing of an opinion. The BSB erred in law in not recognising that fact. Ground 2: If, contrary to the assertion in Ground 1, the Claimant has not already shown himself to be competent in opinion writing, the BSB failed to exercise any discretion to consider exempting him from a part of the BPTC requirements, namely the requirement to re-take the whole course if an individual assessment is failed twice. The BSB has not brought its mind to bear on this matter. Ground 3: If it had brought its mind to bear on the matter, then the BSB ought to have concluded that this is a case for the exercise of the discretion in favour of the Claimant, who ought to be allowed to re-take the Opinion Writing module alone. In particular, in all of the circumstances, including the Claimant’s own personal circumstances, to require him to re-take the whole BPTC would be disproportionate on the basis that(a) it would breach the common law duty on a public body not to act disproportionately and/or(b) it would be in breach of his rights to private life under article 8 of the European Convention on Human Rights (“article 8”). Ground 4: The BSB failed to give adequate reasons for its decision not to accept that he had in fact sufficiently demonstrated competency in opinion writing, and/or not to modify the requirement to take the entire BPTC again. I will propose dealing with these grounds in turn, covering the minor threads of argument on the way.

Ground 1: Substantive Demonstration of Competence

[58]Mr Dixon submitted that, although the Claimant has twice failed the Opinion Writing assessment, looking at the BPTC assessments as a whole, he has substantively demonstrated competence in writing opinions. In particular, the Personal Injury option required the writing of an opinion, and the Claimant was awarded the grade “Very competent” for that. The BSB erred in not recognising that fact; and this court should direct the BSB so to find, and allow the Claimant to progress to pupillage.[59]In my view, this ground has no force. i) It directly challenges the BSB’s judgment that, leaving aside carefully circumscribed circumstances such as specified extenuating circumstances and other categories into which the Claimant does not fall, in order to demonstrate competence sufficient to progress to pupillage, a candidate must pass each of the required BPTC assessments in the course of a single course period plus one re-sit. As I have explained, that decision of the BSB required professional and academic judgment, which was exercised with patent care and consideration, and which is unimpeachable in this court. The BSB was entitled to require every candidate, who did not fall within the exempted and excepted categories to which I have referred, successfully to conclude each element of the BPTC in that limited period. The setting of such standards, and how they might be met, is quintessentially a matter for the BSB – and not this court. ii) Reliance on the Claimant’s commendable success in the Personal Injury option is misplaced. As I understand it, that opinion was written over a week, with the benefit of various facilities: the part of the Option Writing assessment which the Claimant failed was time-constrained and unseen, thereby testing different skills and attributes. The BPTC Handbook required Opinion Writing to be assessed in that manner (paragraph A2.2.5(e), quoted at paragraph 19 above). iii) Furthermore, paragraph B4.11.4 of the BPTC Handbook made clear that “All components of the course must be taken and passed satisfactorily”, and that “in no circumstances” can a student’s overall course performance compensate for individual assessment failures (see paragraph 23 above).[60]This ground consequently fails.

Ground 2: Failure to Exercise Discretion

[61]Mr Dixon submitted that the BSB had a discretion to allow the Claimant to proceed without retaking the entire BPTC, either(i) under the exemption provisions under the scheme (see paragraphs 27-30 above) and/or(ii) outside the scheme. As I understood the submission, Mr Dixon contends that the BSB erred by not bringing its mind to bear on exercising that decision at all; or, alternatively, if it did bring its mind to bear on the issue, in not exercising its discretion to allow him to (e.g.) retake part of the BPTC sufficient to enable him to pass the Opinion Writing module.[62]The Bar Council accepts that, if the Claimant made an application for exemption under paragraphs rQ83 of the BTR (see paragraph 29 above), the TQL Panel would in practice – and, indeed, would be obliged to – consider whether the Claimant should be exempt from the vocational requirements of the BPTC. Without prejudging such an application, Ms Padfield suggested with some force that, given the view of the BSB that competence to proceed to pupillage can only usually be evidenced by successful completion of the BPTC over a course period and one re-sit – which the Claimant had failed to do – it may be very unlikely that such an application would succeed (see also paragraph 31 above). But, in any event, such an application – which is required to be in the form prescribed by the BSB and accompanied by the fee of over £400 – has never been made. The BSB cannot have acted unlawfully in not considering exempting the Claimant from those requirements absent an application to do so.[63]Ms Padfield’s submissions are overwhelmingly persuasive. Mr Dixon said that, in the light of the Bar Council’s conduct of this matter including its failure to engage with the issues pre-action (including a failure to respond to the pre-action protocol letters), the Claimant has lost confidence in the BSB considering impartially and properly any application for exemption he might make – and he is clearly reluctant to spend over £400 on such an application. But the BSB cannot be criticised for not considering an application for exemption that has not been made.[64]In respect of the failure to exercise its discretion outside the scheme, the STA case shows that there is no such discretion: the regulator is entitled to require specific examination passes from all applicants, and thus must be entitled to requires such passes from all applicants save for those it has decided, on legitimate grounds, to exempt or except. Insofar as Mr Dixon contends that the insistence on the Claimant retaking the whole BPTC was disproportionate – and thus the Bar Council ought to have exercised a residual discretion to enable him to progress without engaging upon the entire BPTC again – I deal with that contention below (Ground 3).[65]For those reasons, Ground 2 also fails.

Ground 3: Proportionality

[66]Mr Dixon submitted that the requirement that the Claimant retake the whole BPTC – including, of course, paying for the course again – was disproportionate to the perceived need addressed, namely the need to ensure the maintenance of professional standards. He put the case both at common law and in terms of article 8.[67]I can deal with the position at common law – wisely not strongly pressed by Mr Dixon before me – very shortly. It has no merit. Over and above the scope of Wednesbury unreasonableness, proportionality is not a common law principle (R v Home Secretary ex parte Brind [1991] 1 AC 696). It is a concept derived from Europe, and proportionality comes into play only where triggered by, for example, European law rights (including human rights) being in issue.[68]However, Mr Dixon submitted that, by requiring the Claimant to retake the whole BPTC, the BSB also breached the Claimant’s article 8 rights. Article 8, “Right to Respect for Private and Family Life”, provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Mr Dixon contends that the requirement to retake the whole BPTC breaches the Claimant’s right to respect for his private life.[69]In doing so, he relies upon three Strasbourg authorities, namely Niemitz v Germany (1993) 16 EHRR 97 at paragraph 27, Sidabras v Lithuania (2004) 42 EHRR 104 at paragraph 47 and Bigaeva v Greece (Application No 26713/05) at paragraphs 23-25. From these authorities, he submits, it is clear and axiomatic that article 8 is engaged in this case.[70]However, I do not agree.[71]The concept of private life under the European Convention is amorphous and lacks clear definition. It is however clear – from the cases upon which Mr Dixon relies, and others – that it is not restricted to personal privacy and the right to keep oneself to oneself. The right to lead one’s life as one chooses, including the right to relate socially with others of one’s choice, are all elements in the overarching right. Consequently, as a concept, “private life” goes beyond what might be regarded as the purely private sphere into business or professional activity, because the private and business/professional spheres may coalesce and/or moving into those spheres may be essential for people to achieve personal fulfilment.[72]However, the law recognises that the extent to which private life protection can move into these spheres is limited in extent. For example, article 8 does not afford a right to work generally, nor a right to work in a particular job or profession (R (Countryside Alliance) v HM Attorney General [2007] UKHL 52 at [15(4)] per Lord Bingham. Whether article 8 is engaged will depend upon the circumstances of the particular case.[73]In Sidabras, the two applicants worked in the Lithuanian Revenue Department and Prosecutor General’s Department respectively. Each had previously worked for the Lithuanian branch of the KGB. A Lithuanian statute passed in 1998 forbade ex-KGB employees from being employed in a wide variety of jobs in both public and private sectors, including those held by the applicants, for ten years from the date of a declaration that the particular person had worked for the KGB – in the case of each applicant, 1999. The applicants complained that the employment ban was contrary to their article 8 rights, or their article 14 rights taken in conjunction with article 8. The European Court of Human Rights found that it contravened the latter.[74]The extreme facts of Sidabras case are self-evident. In considering Sidabras in the Countryside Alliance case, Lord Bingham said this (at [15(4)]:
“Sidabras was a very extreme case on its facts, since the statutory consequence of employment as KGB officers some years before was disbarment from employment in very many public and private employments, and the applicants complained of constant embarrassment. Effectively deprived on the ability to work, the applicants’ ability to function as social beings was blighted. Such is not the lot of the… claimants, to whom every employment is open save that of hunting wild animals with dogs. But even on the extreme facts if Sidabras the court did not… find a breach of article 8 but contented itself with finding a breach of article 14 in the ambit of article 8.”
Lord Bingham went on to conclude, in the last paragraph of [15], that “the claimants’ complaints were very far removed from the values which article 8 exists to protect”; although he also proceeded to address the issue of justification, in the event that that firm conclusion was wrong. Those astute observations consequently make clear that, although article 8 might be relevant in some circumstances beyond the traditional scope of private life, it is not generally applicable across the whole gamut of business and professional affairs; and they advise caution when reliance is placed on respect to private life in the context of a business or professional context.[75]The facts of Bigaeva are similarly remote from those of the case before me. The applicant was a Russian national, who passed the academic stage of training to become a professional advocate in Greece. Then, contrary to a general domestic law ban on foreign advocates in Greece, she obtained what we would call pupillage. It then came to the notice of the authorities that she was not Greek – a fact she had never sought to hide – and she was prohibited from proceeding to become qualified. The Strasbourg Court found that that prohibition was, in her case, in breach of article 8. The court appears to have placed some weight on the fact that she had – contrary to domestic law – been given pupillage.[76]In none of the cases to which I was referred was there a question about the professional competence of the relevant individual. Indeed, it is stark that, in none of the cases concerning professional qualification does article 8 appear even to have been raised as an issue (see, e.g., R (Sivills) v General Social Care Council [2007] EWHC 2576 (Admin), R (Patel) v General Medical Council [2013] EWCA Civ 327).[77]In my judgment, the respect to private life does not arise in the context of the setting of requirements as to competence for entry into (and continuance in) a particular profession. A person has no right, under article 8 or from elsewhere, to work in a particular profession. The relevant regulator is entitled (and, indeed, obliged) to set the requirements it considers necessary to maintain the standards of competency in that profession, in the public good, subject only to challenge on grounds of irrationality. A person will either satisfy those requirements or he will not. An individual’s right to private life has no bearing on either(i) the setting of the requirements, or(ii) the individual’s ability to satisfy them. Article 8 is not engaged in this case.[78]But, in any event, even if, contrary to my very firm view, article 8 were engaged, I do not consider that the scheme adopted (or any failure of the Bar Council to waive requirements of the scheme in the Claimant’s case) would be arguably disproportionate to the legitimate aim of the scheme, i.e. to maintain standards of competency with the Bar, in the public interest.[79]The principle of proportionality requires a greater degree of scrutiny of the relevant decision and the consequences to individuals compared with the aim; but, in this case, the BSB have determined that, without passing the BPTC at two sittings, a candidate does not evidence competence to allow him to proceed to pupillage. The fact that the Claimant may find it difficult to proceed (because of the need to pay a second BPTC fee), or considers that he only just failed (see Patel v Secretary of State for the Home Department [2103] UKSC 72), or considers he has a calling to be a member of the Bar, or is of mixed race, or has a disabled partner (all of which Mr Dixon prayed in aid) may be important – possibly, vitally important – in other contexts; but they can have little if any weight in the proportionality balance here. Similarly, the Unfair Terms in Consumer Contracts Regulation 1999 (SI 1999 No 2083), upon which Mr Dixon also relied, can have no possible relevance in circumstances in which the Claimant and the Bar Council were not in a contractual relationship at all. The requirement that all assessments be passed with time and opportunity constraints is intended generally to protect the public, in pursuit of the obligation on the Bar Council, derived from the 2007 Act, so to do. The public interest in the legitimate aim of promoting and maintaining professional principles and standards, including the maintenance of proper standards of work by those who work in the profession, simply overwhelms any possible infraction of the Claimant’s article 8 rights.[80]Although Mr Dixon did not press this further point, this is also the reason why the BSB has not acted contrary to section 28(3) of the 2007 Act, which requires an approved regulator such as the Bar Council to have regard to the principles under which regulatory activities should be (amongst other things) proportionate (see paragraph 5 above). In determining what a candidate is required to do to evidence competence at the vocational stage, there is no basis for the suggestion that the BSB did not have regard to the principle of proportionality; although, for the reasons I have given, that principle may be of modest effect in considering the appropriate standards of competency and how they should be evidenced. In determining that an individual who failed a module of the BPTC twice failed the BPTC as a whole – so that he would be required to retake the entire course – the BSB clearly understood that that would require the payment of a second set of BPTC fees, which would, for some, be onerous. They had the Wood Review much in mind, and that specifically considered the cost of the BPTC (although not, of course, specifically the costs of a retaken course, as it recommended the prohibition of such a second opportunity).[81]For those reasons, this ground, in all its aspects, fails.

Ground 4: Inadequacy of Reasons

[82]In his written grounds, Mr Dixon submitted that the BSB had failed to give adequate reasons for its failure to its decision not accept that he had in fact sufficiently demonstrated competency in opinion writing competency, and/or not to modify the requirement to take the entire BPTC again.[83]This was not a ground pursued by Mr Dixon at the hearing. In my view, his reticence was warranted: this is clearly not a reasons case. As I have described, it is open to the Claimant to seek an exemption from the vocational stage requirements; but, until such an application is made, there is no onus on the BSB to consider whether there should be an exemption, yet alone give reasons why (if this is the TQL Panel’s view) an exemption should not be extended. In the meantime, why the BSB has acted as it has is clear: the Claimant has failed to pass the Opinion Writing module twice, and has thus failed the BPTC as a whole. Having considered the requirements of the BPTC with patent care, the BSB considers that every candidate for the Bar must satisfy the requirements of the BPTC to evidence competence to proceed to pupillage; and, as I understand it, it continues to review those requirements. That is a matter of judgment for the BSB.

Conclusion

[84]For those reasons, none of the grounds is made good. Indeed, despite Mr Dixon’s bold efforts, the Claimant has fallen very far short of persuading me that the Bar Council has acted in any way unlawfully.[85]This claim is dismissed.

Cited in 1 later judgment