Prescott, R (On the Application Of) v General Council of the Bar

A professional regulator may require candidates to pass specified assessments before progressing to professional training, provided the requirements are authorised by statute and are not irrational in the Wednesbury sense. The regulator has a particularly wide margin of judgment when setting competence standards. There is no general common-law principle of proportionality beyond irrationality review. Article 8 is not generally engaged by requirements governing competence for entry into a profession, and it confers no right to work in a particular profession. A near miss does not require regulatory standards to be waived. Where an exemption procedure exists, the regulator is not required to consider exemption in the absence of an application.

The claimant had passed almost all parts of the vocational Bar Professional Training Course, but failed the Opinion Writing module twice. Under the Bar Training Rules and the BPTC Handbook, failure of an assessment on two occasions resulted in failure of the course, requiring the claimant to retake the course in its entirety. He challenged the requirements and the Bar Council’s failure to permit him to retake only the failed module.

The claim alleged substantive error, failure to exercise a discretion, disproportionality at common law and under article 8 of the European Convention on Human Rights, and inadequate reasons. The central issues were whether the Bar Standards Board could insist on successful completion of every assessment and whether it was required to waive or modify that requirement.

1. The claim was dismissed. None of the claimant’s grounds established unlawful conduct by the Bar Council.
2. The statutory scheme authorised the Bar Standards Board to set minimum competence criteria for progression to pupillage, including a requirement that every candidate pass specified assessments. The setting of professional and academic standards was a matter for the regulator, not the court. Judicial intervention was limited to ordinary public-law grounds, including irrationality in the Wednesbury sense. Given the specialised judgment involved, the range of reasonable decisions was especially wide.
3. The restrictions on resits and the requirement to retake the entire course after failing an assessment twice were rational responses to the deficiencies identified in the Wood Review. The regulator was entitled to conclude that competence could ordinarily be demonstrated only by passing each element during one course and one permitted resit. A narrow failure did not create a legal near-miss principle.
4. The exemption provisions created a route by which the claimant could apply to the relevant panel for exemption from part of the vocational requirements. No such application had been made. The Bar Council could not act unlawfully by failing to consider an exemption application that did not exist. There was no residual discretion outside the regulatory scheme.
5. Article 8 was not engaged. Although private life could extend into professional activity, it did not confer a right to work in a particular profession. Requirements directed to competence for entry into a profession were therefore outside the scope of article 8 in this case. Even if article 8 had been engaged, the requirements would not have been disproportionate to the legitimate aim of maintaining professional standards in the public interest.
6. The reasons challenge also failed. The claimant had failed the Opinion Writing module twice, and the Bar Council’s position was clear. Until an exemption application was made, there was no obligation to decide whether an exemption should be granted or to give reasons for refusing one.