Court of Appeal in Northern Ireland Decisions

1. This is an appeal against a decision of Kerr J given on 13 October 1999, whereby he dismissed the appellants' application for judicial review. As set out in the grounding statement, the application purported to seek judicial review of decisions of the Law Society of Northern Ireland, the Council of Legal Education (Northern Ireland) and the Institute of Professional Legal Studies refusing to admit the appellants to the postgraduate course run by the Institute to provide training for those seeking to become admitted as solicitors. As the case was presented before the trial judge in the Queen's Bench Division and on appeal it was clear that the issue at stake was the validity of the provision in the regulations made by the Law Society whereby an applicant for registration as a student of the Society must establish that he has been offered a place in the Institute. The case made by the appellants was that that provision was ultra vires the enabling legislation and void, and they sought a series of consequential remedies.

2. The admission of solicitors is governed by the Solicitors (Northern Ireland) Order 1976, as amended by the Solicitors (Amendment) (Northern Ireland) Order 1989. The 1988 Regulations were made before the latter Order was passed and for present purposes only the 1976 Order is relevant. Article 5(1) prescribes who may be admitted as solicitors:

3. Article 6(1) empowers the Law Society to make regulations governing the education and training of persons seeking admission as solicitors:

4. The Law Society exercised the power conferred by Article 6 by making the Solicitors Admission and Training Regulations 1988 (the 1988 Regulations). By Regulation 7 any person who intends to seek admission as a solicitor must apply to the Society for registration as a student, lodging indentures of apprenticeship between himself and a solicitor acceptable to the Society's Education Committee. Regulation 8 prescribes the conditions which must be satisfied before the student's registration becomes unconditional:

5. The "Institute" is defined as the Institute of Professional Legal Studies, a postgraduate centre forming part of The Queen's University of Belfast and concerned solely with the professional training of persons intending to become barristers or solicitors.

6. The appellants are both employed at present as law clerks in a Belfast firm of solicitors. Each failed to obtain a place in the Institute for the year 1999-2000 and so was unable to satisfy the Law Society's conditions for registration as a student. They both claim, however, that they have reached an educational standard which would fit them to be admitted as solicitors after receiving proper professional training.

7. Denise Kelly obtained a degree in law from Queen's University, with Second Class Division One honours. She had applied for a place at the Institute in 1997, and was accepted conditionally on obtaining 2.1 honours, being ranked 29 ^th in the list of candidates. She was unable to take up the place because she failed one subject in her degree examinations and had to re-sit the paper, with the consequence that she did not obtain her degree by the date required by the Institute. She applied again in 1998 for admission to the Institute in the year 1999-2000, but was unsuccessful in the entrance procedures and was not offered a place.

8. Fearghal Shiels obtained a degree in law from Queen's University with Second Class Lower Division honours. He applied for admission to the Institute for the year 1997-98 and again for 1998-99, but was unsuccessful both times in obtaining a place. He applied once more for the year 1999-2000 and again was not accepted, this time being ranked 265 ^th in the entrance procedures.

9. Before the Institute was set up intending solicitors (other than law clerks who had served for seven years or more) had to obtain a university degree approved by the Law Society and serve a three-year apprenticeship with a practising solicitor. The Law Society arranged lectures for the apprentices and held examinations which they were required to pass before they could be admitted as solicitors. In 1972 a committee was set up by the Government, chaired by Professor AL Armitage, with the task of considering and making recommendations upon the education and training for professional qualifications in the legal profession. Its conclusion in its report, published in 1973, was that the existing system provided inadequate training for entry into either branch of the profession and that the case for change was overwhelming. It recommended that a postgraduate professional law course of one year's duration should be provided at Queen's University by an institute to be known as the Institute for Professional Legal Studies, which would provide training for students in both branches of the legal profession. The governing body should be the Council of Legal Education, comprised of representatives of the judiciary, Bar and solicitors, together with members from Queen's University. The Committee considered, on the evidence before it, that –

10. The Institute was established as recommended and took in its first student intake in 1977. It had accommodation for 50 students, all of whom received postgraduate bursaries from the Department of Education. Demand for places exceeded supply from the beginning and entry became highly competitive. By the early 1980s the number of applicants was about double the number which could be accepted, notwithstanding an increase in the bursaries in 1979-80 to 70 per year, corresponding to an expansion of the intake of the Institute to 70 places. Both branches of the profession argued that the number of places should be greatly enlarged and maintained an alternative route of entry into the profession, through which significant numbers qualified. The Department of Education opposed the expansion of student numbers beyond the level which it considered the profession could absorb. Although it would have been willing to agree to the admission of some fee-paying students, it wished to see the alternative routes of entry discontinued and made it clear that it would not fund the Institute or the students on an open-ended basis. The Department has consistently maintained this stance up to the present, as appears from the affidavit of Mrs Isobel Anne Fenton, now Director of the Institute.

11. It was against this background that the Bromley Committee, chaired by Professor PM Bromley, was set up in 1983 to review the work of the Institute and consider the issue of professional education and its funding. The core recommendation in its report, published in 1985, was that the alternative courses be discontinued and that the sole postgraduate route of entry into the legal profession should be through a full-time course at the Institute.

12. In Chapter 5 of its report the Committee dealt with the issue of student numbers and selection. It recorded that in 1980 the Law Society had expressed support for a policy of open admission to the solicitors' profession without restriction of numbers. It stated, however, in paragraph 5.7 of the report that in the Society's evidence to the Committee "it seemed that they were in favour of a limitation on numbers, as there was some evidence of overcrowding in the profession, but that they found it difficult to assess the manpower requirements of the profession". This statement may have as its foundation the passage in the Law Society's written submission to the Committee, in which it stated at paragraph 4.1:

13. No reference to numbers appeared in the Society's further written submission, and the issue could not be described as having been prominent in the written material which it put before the Committee.

14. In paragraph 5.8 of its report the Committee expressed its own firm opinion that it was essential to plan for firm student numbers and recorded in paragraph 5.10 that

15. Its recommendation on numbers was as follows:

16. The Bromley Committee concluded Chapter 5 of its report by examining in detail the method of selection for places at the Institute, and it is clear that its consideration was predicated upon a continued demand for places which exceeded the number available. It appears, moreover, from paragraph 5.20 of the report that the Committee recognised that the restriction of intake by means of its proposed selection test would result in the rejection of applicants who had thitherto been acceptable to the profession. Miss Kelly also points out in paragraph 6(g)(i) of her affidavit that the offer of a place to a student in any given year is determined not by absolute standards of ability measured in the test but by comparative performance in competition with those who sought entry in that particular year.

17. The Law Society accepted the conclusions and recommendations of the Bromley Report. It discontinued the alternative method of entry and made the 1988 Regulations, whereby all students, apart from the excepted categories, have to obtain the offer of a place at the Institute before their registration with the Society becomes unconditional. An affidavit was sworn on behalf of the Law Society by Mr Comgall McNally, a past President of the Society, who has served on its Education Committee and on the Council of Legal Education for some years and was a member of the steering committee which set up the Institute and of the Bromley Committee. Mr McNally denied the appellants' claim that the regulations were made in order to limit numbers. He went on in paragraphs 8 to 10 to reject the suggestion that the Institute was designated as the establishment into which students had to be accepted in order to cap the intake numbers at a level dictated by its capacity:

18. Counsel for the Law Society stated on instructions, supported by the minutes of a meeting of the Society's Council held on 3 June 1999, that if another establishment were established which would be capable of providing suitable professional training, the Society would be prepared to consider amending its regulations to specify that establishment in addition to or in place of the Institute.

19. In the judicial review application in the Queen's Bench Division the appellants attacked the 1988 Regulations as being void because they had been made, not for the permitted statutory purpose of the provision of training for students, but for the purpose of limiting the intake. This policy, it was submitted, was void as being ultra vires the enabling legislation and as being anti-competitive. They also suggested that the Institute had collaborated in this policy by restricting the number of applicants that it was prepared to admit.

20. The learned judge held that any regulation purporting to be made under Article 6 of the 1976 Order which sought to restrict the number of entrants on a basis other than merit (by which he clearly meant fitness or aptitude for professional training) would be ultra vires. He did not deal with the argument based on competition law because it was not developed to any extent in the course of the hearing before him. He went on to hold that because of the limit on the number of places at the Institute there was a de facto restriction on the number of solicitor students registered with the Law Society each year which was based on considerations other than merit.

21. He went on to hold that although the Institute restricted the intake to a specified number each year it was not wrong to do so. It was entitled to decide upon the maximum number of places by reference to operational constraints, and to have regard to the expressed intention of the Department of Education to withdraw funding if the numbers exceeded what was acceptable to it.

22. The judge concluded by considering whether the Law Society was responsible for the restriction in numbers. He accepted the averments in Mr McNally's affidavit concerning the Law Society's reason for specifying the Institute in the regulations and the assurance given by counsel on the Society's behalf that it would be prepared to consider including another educational establishment if one which provided an acceptable level of training were to be set up. He concluded that the limit on numbers was effectively operated and controlled by the Department of Education, not the Law Society. He therefore dismissed the application for judicial review.

23. At the hearing in this court the appellants did not pursue the case against the Institute which they had made below and sought a remedy only against the Law Society. They confined their arguments to an attack on the validity of the 1988 Regulations, the essence of their case being a challenge to the vires and legality of those parts of the Regulations which imposed the requirement that a student must produce proof that he has been offered a place in the Institute before his registration becomes unconditional. They based this case on two grounds, first, that the requirement in the regulations was ultra vires the enabling legislation and, secondly, that it constituted an anti-competitive protection of a monopoly and as such either was void or required justification by the Law Society.

24. The appellants did not produce any authority in support of the latter proposition. The Competition Act 1998 has not yet come into force and cannot affect the issue. We are unaware of any other statutory provision or rule of law which might have the effect for which the appellants contended, nor did they refer us to any. We shall therefore restrict our consideration of the issues to those which centre round the power of the Law Society to pass regulations which require students to obtain a place at the Institute.

25. Article 6 of the 1976 Order empowers the Law Society to make regulations with respect to the "education, training, qualifications, conduct, experience and control" of persons seeking admission as solicitors. We agree with the judge's conclusion that this power would not extend to making regulations for the purpose of restricting the numbers of students accepted by the Society. It is on its face a power to prescribe how the students are to be educated and trained, not how many should be accepted, and we should be reluctant to imply a power to restrict numbers from the wording of the enabling provision Article 6. Whether the Law Society possesses such a power apart from Article 6 is a matter which we are not required to decide in this appeal and we reserve our opinion on the issue.

26. On behalf of the appellants it was submitted that –

27. The classic expression of the principle governing the vires of subordinate legislation is that it must come within the purposes for which the power to make it was conferred. So Lord Davey said in Scott v Glasgow Corporation [1899] AC 470 at 492:

28. The use of the concept by the courts has been summarised in de Smith, Woolf & Jowell, Judicial Review of Administrative Action , 5 ^th ed, para 6-061:

29. Lord Denning MR expressed it with lucid simplicity in R v Governor of Brixton Prison, ex parte Soblen [1963] 2 QB 243 at 302, when he said:

30. When dealing with administrative decisions the principle is now more commonly expressed in terms of taking only the proper considerations into account, terminology usually traced back to the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. This is, however, only a difference of name and not of principle, for, as Lord Greene himself remarked in his judgment at 228, the exercise of the discretion conferred "must be a real exercise of the discretion", and that principle applies equally to delegated legislation and administrative decisions.

31. Where the court comes to the conclusion that the action called in question was done with the object of achieving two or more purposes, one within and one outside the limits of the enabling power, then it has to apply an appropriate test in order to determine whether the action is a valid exercise of the power. The traditional test is whether the permitted purpose was the actor's true or dominant purpose, but other tests have also been applied by the courts and the difficulties, both in determining the correct approach and in applying it, are such that the question has been described in a much-quoted phrase in de Smith, Woolf & Jowell ( op cit , para 6-077) as a "legal porcupine". In that work it is stated that at least six separate tests have been applied where plural purposes or motives are present. The learned editors list them as follows:

32. The fourth test is not supported by the learned editors, we think rightly. The third seems to us to specify a matter which will constitute evidence tending to show what was the true or dominant purpose of the actor, rather than constituting an actual test. The High Court of Australia appears to have taken the same view in Thompson v Randwick Corporation (1950) 81 CLR 87 at 106, where it said:

33. Similarly, test (6) seems to us to deal with evidence relating to the application of test (5). The apparently formidable list is reduced then to two main tests, the true or dominant purpose (which seem to us to be synonyms) and that framed in terms of irrelevant considerations having a substantial or material influence upon the decision.

34. The true or dominant purpose test is succinctly summarised in Wade & Forsyth, Administrative Law, 7 ^th ed, p 436:

35. Judicial authority may be found for the proposition, if indeed it is required, in the old case of Westminster Corporation v London and North Western Railway Co [1905] AC 426 and in the dissenting judgment of Denning LJ in Earl Fitzwilliam's Wentworth Estates C Ltd v Minister of Town and Country Planning [1951] 2 KB 284 at 307, where he said :

36. Wade & Forsyth suggest at page 439, however, that the doctrine of irrelevant considerations may be an alternative route to the same result, though the view is expressed in Supperstone & Goudie, Judicial Review, 2 ^nd ed, para 5.42 that this may offer a lower threshold of illegality. Megaw J adverted to the difficulty involved in the varying terminology in a passage in his judgment in Hanks v Minister of Housing and Local Government [1963 1 QB 999 at 1020-21 which bears repetition:

37. In several modern cases the Queen's Bench Division has adopted the test of material, significant or substantial irrelevant considerations. In R v Inner London Education Authority, ex parte Westminster City Council [1986] 1 All ER 19 at 36 Glidewell J expressed the opinion that tests (1) and (5) of those set out in de Smith, Woolf & Jowell achieve much the same result and that the simplest and clearest way to state the matter is by reference to "considerations". In R v Lewisham London Borough Council [1988] 1 All ER 938 at 951 Neill LJ said that if a "bad" reason or purpose demonstrably exerted a substantial influence on the relevant decision the court can interfere to quash the decision. The same approach is to be found in judgments of Forbes J in R v Rochdale Metropolitan Borough Council [1982] 3 All ER 761 at 769 and May LJ in R v Broadcasting Complaints Commission, ex parte Owen [1985] QB 1147 at 1176. We consider that it provides a useful alternative to the test of true or dominant purpose, and that each constitutes an application of the basic principle that the donee of a power must act within the limits of the discretion conferred upon him.

38. We can now proceed to state our conclusions by applying these principles to the facts of the case:

39. We accordingly conclude that the 1988 Regulations are valid and that the appellants have not made out a case for any of the remedies which they seek. The appeals must therefore be dismissed.