R v Royal Pharmaceutical Society of Great Britain, ex parte Mahmood and Another

JurisdictionEngland & Wales
JudgeLORD JUSTICE KENNEDY,Lord Justice Kennedy,LORD JUSTICE RIX
Judgment Date31 July 2001
Neutral Citation[2001] EWCA Civ 1245
Docket NumberCase No: C/2000/2891
CourtCourt of Appeal (Civil Division)
Date31 July 2001

[2001] EWCA Civ 1245

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE HOLMAN

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Kennedy

Lord Justice Chadwick and

Lord Justice Rix

Case No: C/2000/2891

Mahmood and Shamllakh application for Judicial Review

Andrew Arden Qc and Amy Baker (instructed By Allen & Overy For Bar Pro Bono Unit, The Applicants)

Nigel Pleming Qc And Alison Foster (instructed By Penningtons For The Respondents)

LORD JUSTICE KENNEDY
1

This is an appeal from a decision of Holman J, sitting in the Crown Office List, who on 26 th July 2000 dismissed the appellant's application for judicial review. Mr Mahmood is a native of Pakistan and Mrs Shamllakh is a native of Saudi Arabia. They each qualified as a Pharmacist in their country of origin, and then came to the United Kingdom where no one can practise as a pharmacist unless they are registered with the respondent Society. In order to obtain registration it is necessary to have received certain academic and practical training, and to have passed the Society's registration examination. It is the examination which gives rise to the problem in this case. Each of the appellants complied with the requirements in respect of their academic and practical training, but they each failed the examination three times between July 1996 and July 1998. Byelaw 29 in Section XX of the Society's byelaws provides that "a person who fails the registration examination at the third attempt will not normally be eligible for registration as a pharmaceutical chemist", and in accordance with that byelaw the appellants have not been permitted to try again. In this action they challenge the legality of that byelaw. The current byelaws were confirmed and approved by the Privy Council in January 1997, and the Society asserts that the relevant byelaw, which was first introduced into the Society's byelaws in 1992, was made pursuant to the powers granted to the Society by section 3(4)(a) of the Pharmacy Act 1954. Alternatively the Society submits that the byelaw was made pursuant to powers granted to the Society by Royal Charter. Mr Andrew Arden QC, for the appellants, accepts that the byelaw making power granted to the Society by its charter is on the face of it wide enough to enable the Society to make the byelaw in question, but he submits that the statute has curtailed that power without itself granting a byelaw making power of sufficient width to enable the Society to make this particular byelaw. In the lower court Holman J held in favour of the Society as to the width of the statutory power, and went on to say that in the absence of section 3(4)(a) power to make the byelaw could have been found in the Charter.

Statutory words and Judge's reasoning

2

Section 3 of the 1954 Act is headed "Qualification by examination for registration" and the first three subsections deal with the appointment of examiners, the fee and the right of the Privy Council to have an observer. Then subsection 4, so far as is material, reads –

"The subjects at any such examination shall be (five are named) and such other subjects as are prescribed (meaning prescribed by byelaw); and byelaws may provide –

(a) for periods of time and courses of study in connection with such examinations and for dividing such examinations into two or more parts;

(b) that no person may be a candidate at any such examination unless he satisfies the Council that he has received such a general education as the Council consider adequate for a registered pharmaceutical chemist;

(c) that no such certificate as is mentioned in the next following subsection shall be granted to any person in consequence of any such examination unless he satisfies the Council that he has received such practical training in the subjects of the examination as the Council consider adequate."

3

Subsection 5 reads –

"Subject to the foregoing provisions of this section, the examiners may grant a certificate of competence to practise as a pharmaceutical chemist to any person who satisfies them at any such examination that he is competent so to practise; and a person to whom any such certificate is granted shall be qualified to have his name registered."

4

Clearly there is no express power to make a byelaw which limits the number of times a candidate may attempt to pass the qualifying examination. By contrast, section 6(4) of the Veterinary Surgeons Act 1966 specifically enables the Council of the Royal College of Veterinary Surgeons to make regulations withdrawing the right to sit for that body's qualifying examination "from a person who has previously failed to pass such examinations on such number of occasions as may be prescribed by the regulations".

5

Before the trial judge counsel who was then appearing for the appellants conceded that section 3(4)(a) of the 1954 Act empowered the Society to make a byelaw that a person must pass the examination within a prescribed maximum period (for example 3 years) of embarking on or alternatively completing, his pre-registration training or of his first attempt at sitting the examination. The judge went on to find that byelaw 29, despite the language in which it is drafted and framed, does have the effect of prescribing a maximum period. It is within the ambit of the statutory power because it achieves an authorised effect and "its validity is not impaired by the language used to achieve that effect". However, as Mr Arden was able to demonstrate, byelaws 26 to 29 inclusive do not in fact prescribe any maximum period. After a second unsuccessful attempt byelaw 27(b) provides that a candidate "shall be required to complete a period of six months employment acceptable to the Registrar in a community or hospital pharmacy notified in advance to the Registrar, and may take the examination for a third time within 12 months of satisfactory completion of such period of employment." It does not specify when the six months employment must start. Accordingly, even if the judge be right of his interpretation of the powers granted by section 3(4)(a), his interpretation cannot be used to sustain byelaw 29.

Issues on appeal

6

The single Lord Justice granted permission to appeal only in relation to the construction of section 3(4)(a), and in relation to a quite separate issue to which I will turn in a moment. At the start of the hearing before us Mr Arden sought permission to expand the first ground of appeal so as to cover what the appellants contend to have been the effect of the statute upon the Charter, and we granted that permission. He also sought and obtained permission to withdraw the concession made by counsel in the court below as to the availability of section 3(4)(a) to prescribe a maximum period within which the examination must be successfully completed. So the first substantial issue is the legitimacy of byelaw 29.

7

The second substantive issue is one raised by the single Lord Justice and not argued before Holman J. It can be encapsulated thus. The overwhelming number of candidates seeking registration have to pass the qualifying examination, but section 4A of the 1954 Act provides that any national of a member state of the European Union who holds an appropriate European Diploma and satisfies such conditions (if any) as to character and as to physical and mental health as may be prescribed by byelaws " shall be qualified to have his name registered" (my emphasis). In addition section 4 of the 1954 Act states that byelaws "may provide" that other persons who have a degree in pharmacy from a university from the United Kingdom "or a diploma granted in respect of pharmacy in any place outside the United Kingdom shall be qualified to have his name registered" without undertaking the qualifying examination. This statutory provision enables the Society to enter into and to honour reciprocal arrangements with equivalent bodies in countries outside the European Union. There are at present such arrangements in relation to Northern Ireland, Australia and New Zealand, and this is of some significance because not all of the Australian States or all of the states in the European Union limit the number of attempts which a candidate can make to pass the qualifying examination. So the second substantive issue is whether the Society's position in relation to the recognition of foreign qualifications improperly discriminates between categories of applicant for registration.

Charter and Statute – Evolution

8

In order to discover where, if anywhere, in either the statute or the Charter the power to make byelaw 29 is to be found it is necessary to trace the evolution of the relevant parts of the Charter and of the statute, and in the process to establish their inter-relationship.

9

The Society was incorporated by Royal Charter in 1843 "for the purpose of advancing Chemistry and Pharmacy and promoting a uniform system of Education of those who should practice the same and also for the protection of those who carry on the business of Chemists and Druggists". The Charter authorised the Council to examine, or to appoint competent persons to examine, and to grant certificates and diplomas. The Charter also authorised the Council to make byelaws for regulating the affairs of the Society "and also the times place and manner of examining Candidates for Admission". So, as Mr Arden submits, the original power to make byelaws was quite narrow, and would not, on the face of it, have authorised the Council to make byelaw 29.

10

The Pharmacy Act 1852 was an "Act for regulating the Qualifications of Pharmceutical Chemists". The Long Title refers to the Charter granted 9 years earlier, and recites that it is...

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    ...has already been heard by the Court of Appeal in the case of R (Mahmood and Shamllakh) v Royal Pharmaceutical Society of Great Britain [2001] EWCA Civ 1245. The court held that the limitation on three attempts was a valid rule for the Society to adopt. 4 In this case the applicant failed th......

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