R Steven Prescott v The General Council of the Bar The University of Law (Birmingham) (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 07 July 2015 |
| Neutral Citation | [2015] EWHC 1919 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5859/2014 |
| Date | 07 July 2015 |
[2015] EWHC 1919 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/5859/2014
and
James Dixon and James Fraczyk (instructed by way of Direct Access) for the Claimant
Alison Padfield (instructed by BLM LLP) for the Defendant
The Interested Party neither appearing nor being represented
Hearing date: 30 June 2015
Introduction
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.
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
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.
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)).
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)).
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.
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.
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.
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).
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."
Therefore, under paragraph rQ4.2(b), to progress to pupillage, a student has either to complete or be exempt from the vocational stage.
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.
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."
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."
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."
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.
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...
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