Law Report: Bar school admissions procedure was not unfair: Regina v Council of Legal Education, ex parte Halstead and others.

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The Independent Culture
The proper forum for the adjudication of a complaint over the admissions procedure for the Bar vocational course was the Visitors to the Inns of Court, who could be petitioned by an applicant even though he did not belong to one of the four Inns.

The Council of Legal Education, which runs the course, was found not to have acted irrationally or unfairly in adopting a new selection procedure and then, when the results were found to be anomalous, using additional criteria to offer places to a number of applicants initially rejected.

Lord Justice Henry, Mr Justice Popplewell and Mr Justice Rougier, sitting first as the Queen's Bench Divisional Court and then as the Visitors to the Inns of Court, rejected combined applications for judicial review and petitions to the Visitors by four students, Robin Halstead, Nicholas Peacock, Desmond Vine and Charles Eddis, who were refused places on the 1994-95 Bar vocational course.

Their complaint concerned the new procedures, adopted by the Bar Council and CLE with the Lord Chancellor's approval, to select the most suitable candidates for the limited number of places available at the Inns of Court School of Law (attendance at which is a necessary precondition for practice at the Bar).

The CLE had the advice of a number of educational and occupational psychologists both in drawing up and in making various changes to the new scheme as it developed. It was on such advice that A-level grades were adopted as one of the main selection criteria, degree results being considered less accurate indicators of final course success. But when the initial results of the new scheme were published, there was widespread concern over the number of very able candidates who were not among the 800 students awarded places. The CLE decided to make an extra 250 places available and to use degree results as an additional criterion.

The four applicants contended that the system was flawed and unfair and that in adopting the new procedure, the CLE acted unfairly, unreasonably and

irrationally.

Genevra Caws QC, Rabinder Singh and Helen Mountfield (Stephen Cragg, Public Law Project) for the applicants; Guy Mansfield QC and William Edis (Stitt & Co) for the CLE.

LORD JUSTICE HENRY, giving the judgment of the court, said the matter, although initially presented as an application for judicial review, was not amenable to the jurisdiction of the Divisional Court and should instead be dealt with by way of a petition to the Visitors, applying the Consolidated Regulations of the Inns of Court (see R v Board of Examiner of CLE, ex parte Joseph, Court of Appeal, 4 November 1993).

Whether the Visitors sat in an appellate or supervisory role depended on the nature of the decision being considered. Here their role was supervisory, not appellate, because it was not for the Visitors to substitute their own academic judgment for that of the CLE, which was likely to be better informed on such matters, but simply to assess whether the CLE in exercising its own discretion had acted rationally and within its powers.

To be fair, the new system had to apply in the same way to all candidates. Any question of unfairness or irrationality would have to be looked at in a collective, not individual, context. A system designed to eliminate two out of every three candidates, when half could pass the course first time round, was bound to, and did, throw up individual unfairnesses.

With hindsight, it was clearly a mistake to exclude degrees from the original selection criteria. But the CLE redressed the situation at once and provided extra places. The CLE had clearly devoted an enormous amount of time and thought to the problem and the fact that it consulted experts at every stage was central to the case. It was not suggested that it was unreasonable to consult them or that too much was left to the experts.

The decisions taken by the CLE were all well within the powers and discretions entrusted to them, and there was nothing in the CLE's behaviour that could be categorised as unreasonable or irrational in the sense defined in Associated Provincial Picture Houses v Wednesbury Corporation (1948) 2 QB 223.

The applications for judicial review and the petitions to the Visitors must be dismissed.

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