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Islam v Bar Standards Board

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Last updated 18th April, 2024.

The Bar Standards Board (BSB) had not allowed the appellant to proceed to the Vocational Stage of qualifying as a barrister. He did not have a 2:2 honours degree, so under the criteria applied by the BSB, there had to be clear evidence that he was academically of second class quality overall. He argued that his university had not made sufficient adjustments for his sight disability, pulling down his grade. The High Court upheld the BSB decision. Under the Equality Act 2010 (EqA) and previous DDA 1995, the competence standard was a proportionate means of achieving a legitimate aim (justification). Outside of equality law, the High Court reconsidered whether the appellant should be allowed to proceed to the Vocational Stage, and decided he should not. My comments are below.

2012, High Court. [2012] All ER (D) 05 (Aug)

Facts

This was an appeal against a decision of the Qualifications Committee of the Bar Standards Board (BSB). In December 2009 the committee had upheld a BSB decision declining to exercise the discretion to allow the appellant to proceed to the Vocational Stage of qualifying as a barrister, on the grounds that his qualification was not sufficient to enable him to do so (ie basically, he had not passed the Academic Stage). The committee was not satisfied there was sufficient evidence that the appellant was academically of second class standard. [§1]

The Consolidated Regulations of the Inns of Court and the General Council of the Bar required a student seeking to become a barrister to complete both the Academic Stage and the Vocational Stage of training. As described by the court in this case: “By Regulation 12 of the then Consolidated Regulations a student had to achieve a lower second class degree or above in order to proceed to the Vocational Stage though the BSB had a discretion, which could only be exercised in exceptional circumstances to waive that requirement.” The Academic Stage Handbook set out criteria for the exercise of the discretion:


“This discretion will only be exercised rarely and where there are exceptional circumstances. The following are the criteria that must be met in order for discretion to be exercised:
• (i) there is clear evidence that the student is academically of second class quality overall;
• (ii) it appears that the student’s failure to achieve a second class degree was directly attributable to a temporary cause which prevented/impeded him/her fulfilling his/her full academic potential;
• (iii) it plainly appears that this cause is not of such a character as to render the student unsuitable to practise at the bar; and
• (iv) there is clear motivation to qualify and practise at the bar.”

The appellant had obtained a lower second class degree from a university in Bangladesh, but there was evidence [§45] that this was not the equivalent of a UK honours degree. Before he began his LLB (an undergraduate law course) at the University of London, in December 2001, he had developed retinitis pigmentosa, a degenerative condition of the eyes, He had been certified and registered blind. A “to whom it may concern” letter from Moorfields Eye Hospital had said it “would be grateful if he could be considered for 50% extra time in view of visual difficulties” [§3]. However, there was a dispute on the evidence as to how far the appellant sought and was granted adjustments by the University of London,. Throughout his time at this university, his eyesight was deteriorating. The university awarded him a third-class honour, after re-grading. [§3-10]

Held: His appeal failed. Among other things, there was no breach of DDA 1995 or the Equality Act. Also, the High Court re-considering whether the discretion should be exercised to allow him to proceed to the Vocational Stage, despite not having a 2:2, and decided it should not.

Disability discrimination

The appellant argued it was a breach of the Disability Discrimination Act 1995 (DDA) or Equality Act 2010 that an intending barrister had to comply with the Consolidated Regulation 12. [§19]

The High Court accepted that the BSB, as part of the General Council of the Bar, was a public authority under both these Acts. It was unlawful for a “qualifications body” such as the BSB, to discriminate against a disabled person such as the appellant [see Professional exam bodies]. [§24]

However, where the qualifications body was applying a competence standard – ie an academic, medical or other standard applied for the purposes of determining whether or not a person has a particular level of competence or ability – then under s.14A DDA it did not discriminate against the disabled person if it could show that: [§24]

• “(a) the standard is, or would be, applied equally to persons who did not have his particular disability: and
• (b) its application is a proportionate means of achieving a legitimate aim.”

The court said the test was essentially the same, though slightly different, under the Equality Act 2010 s.19 and s.53 (7) [discussed at Professional exam bodies]. There too, the burden was on the qualifications body to show that the competence standard was a proportionate means of achieving a legitimate aim. [§25]

In 2007-2008, there had been a major review of the Vocational Stage of the Bar exams. Many students on the course had struggled, and there was a high first-time failure rate. Also, weak candidates held back more able students. Consideration was given to raising the minimum entry requirement to an upper second class degree, but ultimately the existing entry requirement of a lower second was retained. A review also recommended that there was no justification for continuing to exercise a discretion in favour of students with third class degrees. Although this was adopted by the BSB in July 2008, some discretion continued to be exercised, albeit very rarely. The BSB (and eg the QC who chaired the review) considered that requiring a lower second was a proportionate means of achieving the legitimate aim of students on the Vocational State being of sufficient academic standard to be reasonably expected to be able to pass; as the review report stated, it was “in the public interest that call to the Bar should unmistakeably guarantee that the newly called barrister has the knowledge and skill which will equip him or her to serve the public in any capacity to a high standard”. [§26]

The appellant submitted that the standard should be lower for a blind person [§17]. However, the High Court said there was no obligation on the BSB to set a lower standard for the disabled. The competence standard has to apply to all who seek to go to the Vocational Stage, to ensure that the requisite standards of competence of the profession are maintained. The standard was applied equally to persons who did not have a disability, and in the court’s view was a proportionate means of achieving a legitimate aim. In the circumstances, the standard in its application to a blind person did not constitute discrimination under either the DDA or the EqA. [§27, 34]

Nor had the BSB discriminated by referring to the option of the appellant, having obtained a third class graduate degree, taking a Masters, in order to reapply. The court noted that in the Masters degree, appropriate adjustments could have been made in taking exams. [§35]

Was it relevant how far previous universities made adjustments?

The High Court said the BSB could not make reasonable adjustments in the examination process carried out by the academic institutions under which the applicant sat the examination for the Academic Stage. The BSB had no control over those bodies’ examination process. Also adjustments were case-specific, and the examinations normally took place before any involvement of the BSB. [§28]

However, when exercising its discretion (see below) of whether to allow someone who had not achieved a lower second or above to proceed to the Vocational Stage, the BSB must examine the evidence of adjustments by the educational institution, in order to discover whether there was a “temporary cause which led to the applicant failing to reach his full academic potential” as stated in the Academic Stage Hand Book, quoted above. [§29]

Under s.149 EqA a public authority had to have due regard to the need to eliminate discrimination, and thus had to examine the evidence of reasonable adjustments made by the educational establishments when exercising its discretion. There was, however, no obligation to ascertain from every educational establishment what its procedures for adjustments are, and whether they eliminated discrimination. It was the educational establishment’s duty to make and maintain proper adjustments for disabled students, and for the BSB to consider such adjustment when exercising its discretion in accordance with the Academic Stage Hand Book. [§30]

Accordingly, there was no obligation on the BSB to make reasonable adjustments itself. or to ascertain what adjustments were being made by the numerous educational establishments in the UK. What it did have to do was to consider the nature of the adjustments in fact taken, in order to decide whether discretion should be exercised in an applicant’s favour. [§37]

Excercise of discretion

After considering and rejecting some other arguments raised by the appellant, the court moved to what it called the “central issues” in the case – namely whether there was clear evidence that the student was academically second class quality overall, and whether his failure to achieve such a level was directly attributable to a temporary cause which prevented or impeded him from fulfilling his full academic potential. The BSB accepted that the High Court judge should consider this as a “rehearing”, so the judge considered the exercise of discretion himself afresh. [§39, 23]

The main basis of the appellant’s submission was that he was close to a lower second, and had reasonable adjustment been made consistent with the request by Moorfields, he would have achieved that standard. [§40]

The court reviewed the evidence about adjustments. The evidence as a whole satisfied the court that the appellant was given extra time consistent with the suggestions from Moorfields. In the absence of any complaint by him that this was insufficient, it was difficult to see what more the university could have done. The court accepted that his disability made it difficult for him to take the exams or finish the papers. However, the extent to which it did so, and hence the extent to which it impeded him from fulfilling his full academic potential, was unclear. [§41-43]

Because the appellant did not have any evidence from his Director of Studies or tutors as to his true level of ability, the court sought further evidence over an adjournment from the University of London and Moorfields, and considered this evidence too. [§44]

The court referred to the appellant as a man with ability and determination seeking to fulfil his long-held ambition to qualify as barrister and then use his legal skills in Bangladesh. He approached his problems not only with determination, but also with good humour and enthusiasm. However, with regret, the court came to the conclusion that the discretion to permit him to proceed to the Vocational Stage could not be exercised here, as there was no clear evidence that he was academically of second class quality overall, in spite of the difficulties he undoubtedly experienced when taking his examinations. The evidence was insufficient to enable the court to say that his failure to achieve the second class degree was directly attributable to insufficient extra time being given to him to take the exams to compensate for his disability. This was not one of those rare cases where exceptionally the discretion could properly be exercised. [§46].

My comments

In summary, reasonable adjustments cannot alter a “competence standard” of a professional exam body such as the BSB. However the reasonable adjustment duty can apply to how the standard is assessed. Further, the competence standard itself can be challenged in a claim for indirect discrimination (s.19 EqA), if the body cannot show the standard is a proportionate means of achieving a legitimate aim (“justification”). See Professional exam bodies.

Often the court will not have jurisdiction to remake the decision of the qualifications body in the way the High Court did here. Reconsidering whether the BSB’s discretion should be exercised was not done under the EqA. Often the court will only be able to apply the provisions of the EqA.

The High Court seems to have taken the competence standard here as the requirement of establishing by clear evidence that the applicant was academically of second class standard [§34] (or, as the Academic Stage Handbook above put it, “academically of second class quality overall”).

Another way of approaching it might be to see there as being a competence standard for everyone (including those with a 2:2 or higher degree) of being academically of second class quality – or perhaps being “convincingly shown” to be such. That standard could be shown either by an actual degree of that class, or by other evidence. However, in this case, the Academic Stage Handbook (above) actually said that people without a 2:2 degree had to meet certain other requirements, albeit not that onerous, as well as being clearly shown to be of second-class standard.

If the BSB had failed to take into account adjustments made by universities for disability, when the BSB was assessing whether someone met that competence standard, then (ignoring s.149 below) could that be a breach of the EqA? Potentially yes, on the basis that it could be argued not to be the “application” of the competence standard under EqA Sch 8 para 15(2) and EqA s.53(7), but rather assessing whether the standard was met. However, it would have to be considered what EqA claim could be made. For example, assuming the professional body had a practice of not taking such adjustments by universities into account, is there a reasonable adjustment claim against it even though the practice is not applied to non-disabled people? Perhaps another more generally applicable practice could be identified. Or it might be argued that the competence standard itself was not justified under s.19 EqA unless sufficient allowance was made for disability. (It may be easier where the competence standards are applied by a university, unless required by a professional body, as there is no restriction on claims under s.15 EqA against a university).

S.149 EqA, the Public Sector Equality Duty, requires a public authority to have “due regard” to the need to eliminate discrimination. However, s.149 focuses on the decision-making process rather than the actual decision reached. If (which may be disputed) s.149 does require the authority to examine the evidence of reasonable adjustments made by the educational establishments when making its decision, any claim under s.149 would probably need to be for judicial review, which is more complicated than a normal County Court claim. Also, having looked at any information, under s.149 the final decision is likely to be for the authority to make.

This decision was considered in Koci v University College London.

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