R (Mahmood) v Royal Pharmaceutical Society of Great Britain

A professional regulator may limit attempts at a qualifying examination where the applicant qualifies through a statutory route permitting prescribed conditions of eligibility. A statutory power concerning periods of study does not, without more, authorise a limit on examination attempts. A separate charter power may remain available unless legislation covers the whole ground or the charter power is exercised inconsistently with the statute.

Differential treatment is not irrational merely because some applicants benefit from reciprocal or mandatory recognition of overseas qualifications. The relevant question is whether the normal route and the exemptions are reasonably justified, not whether all applicants receive the lowest common standard.

Mr Mahmood and Mrs Shamllakh, qualified pharmacists from Pakistan and Saudi Arabia, challenged a byelaw of the Royal Pharmaceutical Society of Great Britain. Each had completed the required academic and practical training but had failed the Society's registration examination three times. The byelaw provided that a person failing at the third attempt would not normally be eligible for registration.

Holman J dismissed their judicial review application on 26 July 2000, holding that the byelaw fell within the statutory power and, alternatively, the Charter. The appeal concerned the scope of the examination and registration powers under the Pharmacy Act 1954, the continuing effect of the Charter, and alleged irrational discrimination arising from exemptions for European Union, Australian and New Zealand qualifications.

1. Appeal dismissed. The Court of Appeal unanimously dismissed the appeal with costs and refused leave to appeal.
2. Examination power. The words “periods of time” in section 3(4)(a) of the Pharmacy Act 1954 concern periods connected with courses of study and examination timing. They do not authorise a byelaw limiting the number of examination attempts. The lower court's attempt to treat byelaw 29 as prescribing a maximum period could not be sustained, particularly because byelaws 26 to 29 prescribed no such period.
3. Alternative statutory and charter bases. Chadwick LJ and Rix LJ held that the byelaw formed part of the section 4(1) degree-entry scheme. The power to prescribe conditions as to character and otherwise included a requirement to pass a registration examination within three attempts; section 16 supplied the necessary statutory byelaw-making power. Rix LJ treated the registration examination as one set under section 3 but capable of being imposed as a section 4 condition. Kennedy LJ and Rix LJ held, alternatively, that article 17 of the 1953 Charter remained available because the statute had not covered the whole ground or created an inconsistency. They applied the principle in Attorney General v De Keyser's Royal Hotel [1920] AC 508 and distinguished it on that basis. Chadwick LJ took the contrary view that statutory regulation of registration displaced the charter power, but his conclusion on validity was independently supported by section 4(1).
4. Discrimination. Applying the high threshold stated in Kruse v Johnson [1898] 2 QB 91, the differential treatment was neither arbitrary nor irrational. It was reasonable to impose the three-attempt limit on the normal route while recognising qualifications supported by mandatory European recognition or monitored reciprocal arrangements. The Society was not required to terminate those arrangements or reduce professional standards to a lowest common denominator.

1. Court of Appeal: Appeal dismissed with costs; leave to appeal refused.
2. High Court (Crown Office List): Holman J dismissed the application for judicial review on 26 July 2000. The judgment appealed is not given a citation in the supplied judgment.