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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mahmood & Anor Application for Judicial Review [2001] EWCA Civ 1245 (31 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1245.html Cite as: [2001] EWCA Civ 1245, [2002] WLR 879, [2002] 1 WLR 879

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE HOLMAN

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 31st July, 2001

LORD JUSTICE KENNEDY:

1. This is an appeal from a decision of Holman J, sitting in the Crown Office List, who on 26^th July 2000 dismissed the appellant's application for judicial review. Mr Mahmood is a native of Pakistan and Mrs Shamllakh is a native of Saudi Arabia. They each qualified as a Pharmacist in their country of origin, and then came to the United Kingdom where no one can practise as a pharmacist unless they are registered with the respondent Society. In order to obtain registration it is necessary to have received certain academic and practical training, and to have passed the Society's registration examination. It is the examination which gives rise to the problem in this case. Each of the appellants complied with the requirements in respect of their academic and practical training, but they each failed the examination three times between July 1996 and July 1998. Byelaw 29 in Section XX of the Society's byelaws provides that "a person who fails the registration examination at the third attempt will not normally be eligible for registration as a pharmaceutical chemist", and in accordance with that byelaw the appellants have not been permitted to try again. In this action they challenge the legality of that byelaw. The current byelaws were confirmed and approved by the Privy Council in January 1997, and the Society asserts that the relevant byelaw, which was first introduced into the Society's byelaws in 1992, was made pursuant to the powers granted to the Society by section 3(4)(a) of the Pharmacy Act 1954. Alternatively the Society submits that the byelaw was made pursuant to powers granted to the Society by Royal Charter. Mr Andrew Arden QC, for the appellants, accepts that the byelaw making power granted to the Society by its charter is on the face of it wide enough to enable the Society to make the byelaw in question, but he submits that the statute has curtailed that power without itself granting a byelaw making power of sufficient width to enable the Society to make this particular byelaw. In the lower court Holman J held in favour of the Society as to the width of the statutory power, and went on to say that in the absence of section 3(4)(a) power to make the byelaw could have been found in the Charter.

Statutory words and Judge's reasoning

2. Section 3 of the 1954 Act is headed "Qualification by examination for registration" and the first three subsections deal with the appointment of examiners, the fee and the right of the Privy Council to have an observer. Then subsection 4, so far as is material, reads –

"The subjects at any such examination shall be (five are named) and such other subjects as are prescribed (meaning prescribed by byelaw); and byelaws may provide –

(a) for periods of time and courses of study in connection with such examinations and for dividing such examinations into two or more parts;

(b) that no person may be a candidate at any such examination unless he satisfies the Council that he has received such a general education as the Council consider adequate for a registered pharmaceutical chemist;

(c) that no such certificate as is mentioned in the next following subsection shall be granted to any person in consequence of any such examination unless he satisfies the Council that he has received such practical training in the subjects of the examination as the Council consider adequate."

3. Subsection 5 reads –

"Subject to the foregoing provisions of this section, the examiners may grant a certificate of competence to practise as a pharmaceutical chemist to any person who satisfies them at any such examination that he is competent so to practise; and a person to whom any such certificate is granted shall be qualified to have his name registered."

4. Clearly there is no express power to make a byelaw which limits the number of times a candidate may attempt to pass the qualifying examination. By contrast, section 6(4) of the Veterinary Surgeons Act 1966 specifically enables the Council of the Royal College of Veterinary Surgeons to make regulations withdrawing the right to sit for that body's qualifying examination "from a person who has previously failed to pass such examinations on such number of occasions as may be prescribed by the regulations".
5. Before the trial judge counsel who was then appearing for the appellants conceded that section 3(4)(a) of the 1954 Act empowered the Society to make a byelaw that a person must pass the examination within a prescribed maximum period (for example 3 years) of embarking on or alternatively completing, his pre-registration training or of his first attempt at sitting the examination. The judge went on to find that byelaw 29, despite the language in which it is drafted and framed, does have the effect of prescribing a maximum period. It is within the ambit of the statutory power because it achieves an authorised effect and "its validity is not impaired by the language used to achieve that effect". However, as Mr Arden was able to demonstrate, byelaws 26 to 29 inclusive do not in fact prescribe any maximum period. After a second unsuccessful attempt byelaw 27(b) provides that a candidate "shall be required to complete a period of six months employment acceptable to the Registrar in a community or hospital pharmacy notified in advance to the Registrar, and may take the examination for a third time within 12 months of satisfactory completion of such period of employment." It does not specify when the six months employment must start. Accordingly, even if the judge be right of his interpretation of the powers granted by section 3(4)(a), his interpretation cannot be used to sustain byelaw 29.

Issues on appeal

6. The single Lord Justice granted permission to appeal only in relation to the construction of section 3(4)(a), and in relation to a quite separate issue to which I will turn in a moment. At the start of the hearing before us Mr Arden sought permission to expand the first ground of appeal so as to cover what the appellants contend to have been the effect of the statute upon the Charter, and we granted that permission. He also sought and obtained permission to withdraw the concession made by counsel in the court below as to the availability of section 3(4)(a) to prescribe a maximum period within which the examination must be successfully completed. So the first substantial issue is the legitimacy of byelaw 29.
7. The second substantive issue is one raised by the single Lord Justice and not argued before Holman J. It can be encapsulated thus. The overwhelming number of candidates seeking registration have to pass the qualifying examination, but section 4A of the 1954 Act provides that any national of a member state of the European Union who holds an appropriate European Diploma and satisfies such conditions (if any) as to character and as to physical and mental health as may be prescribed by byelaws "shall be qualified to have his name registered" (my emphasis). In addition section 4 of the 1954 Act states that byelaws "may provide" that other persons who have a degree in pharmacy from a university from the United Kingdom "or a diploma granted in respect of pharmacy in any place outside the United Kingdom .. shall be qualified to have his name registered" without undertaking the qualifying examination. This statutory provision enables the Society to enter into and to honour reciprocal arrangements with equivalent bodies in countries outside the European Union. There are at present such arrangements in relation to Northern Ireland, Australia and New Zealand, and this is of some significance because not all of the Australian States or all of the states in the European Union limit the number of attempts which a candidate can make to pass the qualifying examination. So the second substantive issue is whether the Society's position in relation to the recognition of foreign qualifications improperly discriminates between categories of applicant for registration.

Charter and Statute – Evolution

8. In order to discover where, if anywhere, in either the statute or the Charter the power to make byelaw 29 is to be found it is necessary to trace the evolution of the relevant parts of the Charter and of the statute, and in the process to establish their inter-relationship.
9. The Society was incorporated by Royal Charter in 1843 "for the purpose of advancing Chemistry and Pharmacy and promoting a uniform system of Education of those who should practice the same and also for the protection of those who carry on the business of Chemists and Druggists". The Charter authorised the Council to examine, or to appoint competent persons to examine, and to grant certificates and diplomas. The Charter also authorised the Council to make byelaws for regulating the affairs of the Society "and also the times place and manner of examining Candidates for Admission". So, as Mr Arden submits, the original power to make byelaws was quite narrow, and would not, on the face of it, have authorised the Council to make byelaw 29.
10. The Pharmacy Act 1852 was an "Act for regulating the Qualifications of Pharmceutical Chemists". The Long Title refers to the Charter granted 9 years earlier, and recites that it is expedient to prevent ignorant and incompetent persons from pretending to be pharmaceutical chemists or members of the Society, to which end "it is desirable that all Persons before assuming such Title should be examined as to their Skill and Knowledge by competent Persons, and that a Register should be kept by some legally authorised Officer of all such Persons". For that and other specified purposes, and to extend the benefits which have already resulted from the Charter "it is desirable that additional Powers should be granted for regulating the Qualification of Persons who may carry on the Business of Pharmaceutical Chemists".
11. Section 1 of the Act made it clear that the Charter remained fully effective "save and except such Part or Parts thereof as are hereby altered, varied or repealed".
12. Section 2 authorised and empowered the Council of the Society to alter and amend the byelaws of the society made under the Charter "and to make and establish such new or additional Byelaws as they shall deem proper and necessary for the Purposes contemplated by the said Charter or by this Act". The section goes on to make detailed provisions for the approval of byelaws which are different from those in the Charter, and to that extent the Charter powers can be seen to have been amended. The byelaw making procedure became statutory, but the power to make byelaws was extended.
13. Section 8 provides that those appointed to conduct examinations contemplated by the Act are "authorised and empowered to examine all persons who shall present themselves for examination" under the provisions of the Act in specified subjects. The examiners are expressly empowered to grant or refuse certificates as they see fit. Mr Arden submitted that section 8 cast upon the examiners the onus of examining anyone who presented themselves, but in my judgment that is not the case. The examiners were authorised and empowered, not required, to examine, and understandably so because, as Mr Pleming QC for the Society pointed out, some of those presenting themselves might be totally unsuitable. For example it would be absurd to expect the examiners to examine a convicted poisoner, or a boy of 12, and so, Mr Pleming submits and I accept, the examiners could, pursuant to section 8 of the 1852 Act have declined to examine candidates who had failed three times provided that the examiners were prepared, if challenged, to demonstrate that their policy was not irrational.
14. Section 10 provided that those who obtained a certificate of qualification from the examiners "shall be entitled to be registered by the Registrar". So, Mr Arden submits, the Charter was supplanted by the Act. It might be more accurate to say that the Act built upon the Charter. Section 12 made it an offence to use the title of Pharmaceutical Chemist or Pharmaceutist if not registered under the Act.
15. A Supplemental Charter was granted to the Society in 1901, but it is of no relevance for present purposes, and I can move on to the Poisons and Pharmacy Act 1908. Section 4 of that Act reads –

"The power of making byelaws conferred by section two of the Pharmacy Act 1952, on the council of the Pharmaceutical Society shall be deemed to include the power of making byelaws for all or any of the following purposes (that is to say):-

(a) Requiring persons desirous of presenting themselves for examination by the said society to produce evidence satisfactory to the council of the society that they have received a sufficient preliminary practical training in the subjects of the examination;

(b) Providing for the registration, upon payment of the prescribed fee, as pharmaceutical chemists or chemists and druggists under the Pharmacy Acts, 1852 and 1868, without examination, of any persons holding colonial diplomas or any qualified military dispensers or certified assistants to apothecaries under the Apothecaries Act 1815, who produce evidence satisfactory to the council of the society that they are persons of sufficient skill and knowledge to be so registered;

(c) Providing for periods of time and courses of study in connexion with the qualifying examination, and dividing such examination into two parts."

16. I can readily accept that by 1908 it was considered necessary for all candidates to have received preliminary practical and other training, but it is difficult to understand why a byelaw requiring such training could not have been made without a new statutory provision. By contrast section 4(b) was outside the scope of the pre-existing byelaw making power. Mr Pleming submits that in part section 4 was enacted for the avoidance of doubt as to the width of existing byelaw making powers, and the words "deemed to include" so indicate. Certainly the word "deemed" is often used in a statute to bring in something that would otherwise be excluded, but "sometimes it is used to put beyond doubt a particular construction which might otherwise be uncertain" (per Lord Radcliffe in St Aubyn (LM) v Attorney General (No 2) [1951] 2 All E R 473 at 498). In any event it seems clear from a statement of the President in relation to section 4 of the 1908 Act made soon after the Act was passed that the Society itself believed that it required section 4(a) and (c) "to obtain the necessary powers" to institute courses of study which excluded so far as possible "the evil effects of cramming". Paragraph (b) provided for the possibility of reciprocal recognition of colonial diplomas, and other means of registration without examination, which are no longer relevant, but paragraph (c) is the predecessor of what is now section 3(4)(a) of the 1954 Act.
17. In 1933 the statutory power granted by section 4(a) and (c) of the 1908 Act was exercised when section XIX of the Byelaws gave the Council of the Society power to make regulations for purposes which included –

"(c) For prescribing the scope and length of training to be undergone by candidates presenting themselves for examination and the evidence thereof to be submitted by the candidate.

(d) For prescribing the character and length of curricula to be taken by candidates, the institutions at which such curricula may be taken, and the evidence thereof to be submitted by the candidate."

18. It is interesting to observe how in paragraph (d) of the Byelaw the Society interpreted and made use of the power given to it by section 4(c) of the 1908 Act which enabled it to provide for "periods of time and courses of study". The periods of time were directly related to the courses of study.
19. In 1948 there was granted another Supplemental Charter which deals with matters of no relevance to this case, but the Supplemental Charter granted in 1953 is important because it revoked all earlier Charters save for the original Charter in so far as it incorporated the Society, and granted it a common seal and the right to sue and be sued. The objects of the Society are set out in paragraph 4 of the 1953 Charter and they include –

"To advance chemistry and pharmacy.

To promote pharmaceutical education and the application of pharmaceutical knowledge.

To maintain the honour and safeguard and promote the interests of the members in their exercise of the profession of pharmacy."

20. Paragraph 17 of the 1953 Charter reads –

"That the council shall be authorised to make, and when made to alter or revoke, byelaws for any or all of the purposes for which byelaws may by the present provisions of this Our Charter be made and such other byelaws as from time to time seem to the council requisite for the management and regulation of the affairs and property of the Society and the better execution of this Our Charter and the furtherance of the objects of the Society."

21. Paragraphs 18 and 19 set out the procedure to be adopted before a byelaw can be brought into force, and paragraph 18 says that a byelaw will be ineffective "if it be repugnant to the provisions of this Charter or to the laws of the realm". Clearly paragraph 17 gave a very wide byelaw making power against the background of the statutory provisions set out in the Pharamacy Act 1852, as enlarged by section 4 of the 1908 Act. Having regard to the way in which these powers evolved I can see no reason to read down the powers granted by paragraph 17 in the light of the earlier statutes, and, as I indicated at the start of this judgment, it is common ground that if not curtailed by statute the byelaw making power in paragraph 17 is wide enough to enable the Society to make what is now byelaw 29.
22. So I return to the 1954 Act which, as is clear from its title, is a consolidating Act.
23. Section 2(2) states that –

"Subject to the provisions of this Act, a person shall be entitled to have his name registered if he –

(a) satisfies the registrar, or on appeal the council, that, in accordance with provisions of section 3 or 4A of this Act or of any byelaw made under section 4 of this Act, he is qualified to have his name registered …"

24. Subsections (4) and (5) of section 3 have, so far as relevant, been set out earlier in this judgment, and I have also made sufficient reference to sections 4 and 4A. Section 16 of the Act, under the heading "Byelaws" reads –

"The Council may make such byelaws as they think necessary for the purposes of any provision of this Act referring to byelaws; but no byelaw made by virtue of this Act shall come into operation until it is approved by the Privy Council."

25. That, as it seems to me, does not, for present purposes, add anything to section 3(4)(a).

Submissions

26. In the light of that history the first question to be addressed is whether section 3(4)(a) of the 1954 Act empowered the Society to make and retain byelaw 29. In my judgment the words of the statute cannot be construed as granting that power. The "periods of time" to which the statute refers are in relation to the courses of study – to avoid "the evil effects of cramming" – and the regulatory power introduced into the byelaws in 1933 illustrates what, in my judgment, the words of the statute really mean.
27. It follows that the Society can only sustain byelaw 29 if they can rely on paragraph 17 of the 1953 Charter. Mr Arden submits that the Society cannot adopt that course because Parliament had legislated in relation to the Society's powers of examination in such a way as to prevent the subsequent operation of a power conferred by the royal prerogative. He has drawn our attention to the decision of the House of Lords in Attorney General v De Keyser's Royal Hotel [1920] AC 508 but, as Mr Pleming points out, it is important to recognise the limitations of that authority. Lord Dunedin said at 526 that "if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules". In the present case the whole ground was not covered by the statute. The same point can be made by reference to the speeches of Lord Atkinson at 539, Lord Moulton at 554 and Lord Parmoor at 576.
28. In R v Home Secretary ex parte Fire Brigade's Union [1995] 2 AC 513 Lord Browne-Wilkinson said at 552 E –

"The prerogative powers of the Crown remain in existence to the extent that Parliament has not expressly or by implication extinguished them. But under the principle in Attorney General v De Keysers Royal Hotel Ltd [1920] AC 508, if Parliament has conferred on the executive statutory powers to do a particular act, that act can only thereafter be done under the statutory powers so conferred: any pre-existing prerogative power to do the same act is pro tanto excluded."

29. I cannot find anything in the 1954 Act which expressly or by implication extinguished the power granted by paragraph 17 of the Charter to make byelaws such as byelaw 29. As already explained, Parliament did not confer on the Society or deny to it statutory powers to do that particular act, which shows precisely why the two authorities cited by Mr Arden do not in fact support the proposition he advances.
30. In fact, as it seems to me, the authorities can be distinguished on a wider basis. Ever since 1852 Parliament has been at pains to support the Society, to widen its byelaw making powers, and nothing in the 1954 Act suggests any regression. Where a power is given directly by statute then of course that statutory power must be used, but for the rest there is no hint of any curtailment of the powers granted by the Charter.
31. Mr Arden did not attempt to attack byelaw 29 on the grounds of rationality. Subject to the discrimination point which is the second issue in the appeal, he accepted that to limit the number of attempts at the registration examination is not irrational. When dealing with section 3(4)(a) he submitted that we should have regard to the importance of the right which is at stake if we are in doubt as to the meaning of the statutory words, and in that context he invited our attention to R v Home Secretary ex parte Brind [1991] 1 AC 696, R v Home Secretary ex parte Simms [2000] 2 AC 115 and R v Home Secretary ex parte Mahmood The Times 9^th January 2001. But, as I have indicated, I would resolve the issue of statutory construction in his favour. That, however, is of little benefit to him because he has failed to persuade me that the wide byelaw making power in the charter has been, to use Lord Atkinson's word, "abridged".

Discrimination Evidence

32. As this is a fresh issue in this court we have before us a significant body of evidence in relation to it. That evidence from present and former officers of the Society shows that –

(1) Recognition of Northern Ireland qualifications is of no significance for present purposes because those qualifications are obtained in the same way as qualifications are obtained in the rest of the United Kingdom.

(2) Although recognition of qualifications obtained by nationals of member states of the European Union is mandatory (see section 4A of the 1954 Act and the Pharmaceutical Qualifications (EEC Recognition) Order 1987, implementing European Union Directives 85/432/EEC and 85/433/EEC) the Society and its senior members are active in trying to ensure that there are high standards of education and training for pharmacists throughout the European Union. Naturally qualification procedures differ. In some countries, as in France, unsuccessful candidates are eliminated at an early stage: some countries, like Denmark, limit the number of attempts, and in other countries, such as Italy, there is no such limitation. Because there are Europe-wide professional bodies the Society does know what happens elsewhere, and it is sometimes possible, as Mr Ferguson explains, to help to raise standards.

(3) As to Australia and New Zealand, pre-existing reciprocal arrangements were brought to an end soon after 1967 when it was decided that all students entering Schools of Pharmacy in the United Kingdom had to study for a degree in Pharmacy. There were then visits to Australia and New Zealand by the officers of the Society, and present and future educational requirements for registration were reviewed. This resulted in new reciprocal agreements with Australia and New Zealand, but the pre-existing agreement with South Africa was not renewed. Australia and New Zealand are unusual in that for obvious historical reasons there have always been close links with the United Kingdom, there are frequent exchanges and there are relatively few training establishments, so standards are easily monitored. Furthermore, reciprocity only operates in relation to registered pharmacists who have at least one year's post-registration practice experience and are of good standing.

33. There are no reciprocal arrangements in relation to North America, or indeed to anywhere else.

Discrimination Submissions

34. Against the factual backgorund briefly outlined above Mr Arden submits that byelaws 27 and 29 are arbitrary because they impinge on two unrelated classes of candidate for registration (United Kingdom applicants and those who do not benefit from European Union or Antipodean reciprocal arrangements) leaving outwith their ambit those who enjoy the benefits of reciprocity. Our attention is invited to Kruse v Johnson [1898] 2 QB 91 where in a case concerned with the validity of a byelaw Lord Russell CJ said of byelaws at 99 –

"If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no jusitification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded."

35. It is a high test, and in my judgment it is not satisfied in this case. Mr Arden submitted that, the limitation on the number of attempts not being of itself irrational, in order to invoke it in a way which was not arbitrary the Society should have discharged all reciprocal arrangements with states or countries where the registration procedure did not involve such a limitaion before introducing that limitation as they did. To do otherwise, it was contended, was irrational. That I am unable to accept. In my judgment the whole argument proceeds upon a false basis. If it is accepted, as it is, that it is reasonable to limit all those who seek registration by the normal route to three attempts at the examination the question then arises as to whether it is reasonable to permit some quailified pharmacists to be registered without examination because the Society has reason to believe that they have already been adequately trained and tested. Plainly the answer to that question must be in the affirmative. The next question is whether it was irrational to grant exemption from the examination to European Union and Antipodean pharmacists, but not to those from Pakistan, Saudi Arabia or elsewhere. On the available evidence it seems to me to be plain that the answer to that question is in the negative. That is in essence the approach adopted by Mr Pleming and, as he points out, this discrimination point, if it had any merit, could be used to attack favourable treatment given to those who benefit from reciprocity. It could not sensibly be used to reduce to a lowest common denominator standards which, for good reason, the society considers to be appropriate, and which it applies in relation to the vast bulk of those seeking registration.

Conclusion

36. For those reasons I would dismiss this appeal.

CHADWICK LJ:

37. I agree that this appeal should be dismissed. But, as I have reached that conclusion by a path which diverges both from that taken by Mr Justice Holman in the court below and from that taken by Lord Justice Kennedy, whose judgment I have had the opportunity to read in draft, it is appropriate that I set out my reasons in a judgment of my own.

The statutory framework

38. The manufacture, supply and sale of medicinal products within England and Wales is controlled by provisions now contained in the Medicines Act 1968. Amongst the acts exempted from the restrictions in sections 7 and 8 of that Act are acts done by or under the supervision of a pharmacist – see section 10 of the Act. Similar exemptions apply to retail sales – see section 52 of the 1968 Act. In that context a pharmacist is a person registered in the register of pharmaceutical chemists established in pursuance of the Pharmacy Act 1852 and now maintained in pursuance of the Pharmacy Act 1954 – see section 132(1) of the 1968 Act. The obligation to maintain that register is imposed on the Council of the Pharmaceutical Society of Great Britain (through a fit and proper person appointed as registrar) by sections 1 and 2 of the Pharmacy Act 1954.
39. The Society (which, since 26 October 1988, has been known as the Royal Pharmaceutical Society of Great Britain) is a corporation aggregate established by Royal Charter granted on 18 February 1843. The 1843 Charter (save in so far as it incorporated the Society and authorised the use of a common seal and suit in the corporate name) was revoked and replaced by a supplemental Charter granted on 19 November 1953. The objects of the Society, as set out in the 1953 Charter, include the promotion of pharmaceutical education and the interests of its members in their exercise of the profession of pharmacy. The members of the Society are those whose names are, from time to time, on the register of pharmaceutical chemists – see section 14 of the 1954 Act. Plainly, the interests of the members of the Society will be promoted by the maintenance of standards in relation to entry to the profession; that is to say, in relation to admission to the register.
40. Admission to the register of pharmaceutical chemists is governed by section 2(2) of the Pharmacy Act 1954. A person is entitled to have his name registered if (a) he satisfies the registrar, or on appeal the Council, that, in accordance with provisions of sections 3 or 4A, or of any byelaw made under section 4, he is qualified to have his name registered, and (b) he pays the prescribed fee. As that provision suggests, there were three routes provided under the statute by which a person might qualify for registration: (i) under section 3, by examination,; (ii) under section 4, by the satisfaction of conditions prescribed for the purposes of that section; or (iii) under section 4A, if a national of a member State of the European Union, by holding an appropriate European diploma.
41. Section 3(1) of the 1954 Act requires the Council of the Society to appoint examiners to hold examinations for the purposes of the Act. Section 3(4) provides that the subjects at any such examination shall be . . . "the latin language, botany, materia medica, pharmaceutical and general chemistry and such other subjects (excluding the theory and practice of medicine, surgery and midwifery) as are prescribed". In that context "prescribed" means prescribed by byelaws made by the Council – see section 24(1) of the Act. The origin of the requirement that those seeking to enter the profession should be examined in the specified subjects – the latin language, botany, materia medica and pharmaceutical and general chemistry – can be found one hundred years earlier, in section 8 of the Pharmacy Act 1852 (15 & 16 Vict. 56).
42. Section 3(4) of the Act provides, in terms, that:

". . . byelaws may provide –

(a) for periods of time and courses of study in connection with such examinations and for dividing such examinations into two or more parts;

(b) that no person may be a candidate at any such examination unless he satisfies the Council that he has received such a general education as the Council consider adequate for a registered pharmaceutical chemist;

(c) that no . . . certificate [of competence] . . . shall be granted to any person in consequence of any such examination unless he satisfies the Council that he has received such practical training in the subjects of the examination as the Council consider adequate."

For the reasons which I shall explain, I take the view that the express power, conferred by section 3(4), to make byelaws for those purposes ceased to be of any materiality after 1970 or thereabouts.

43. Section 3(5) of the 1954 Act – re-enacting an equivalent provision in section 8 of the 1852 Act - provides that "the examiners may grant a certificate of competence to practise as a pharmaceutical chemist to any person who satisfies them at any such examination that he is competent so to practise; and a person to whom such a certificate is granted shall be qualified to have his name registered". In that context "any such examination" means an examination held under section 3; that is to say, an examination at which the subjects examined include those specified in section 3(4). It is, I think, plain that a certificate of competence cannot be granted under section 3(5) to a person who has not satisfied the examiners at an examination which has included the subjects specified in section 3(4) – as well as any other subjects that may, from time to time be prescribed by byelaws. But it is plain, also, that entry through the examination route provided by section 3 of the 1954 Act is no longer the norm; indeed, as the evidence shows, no one has sought to qualify by that route for the past thirty years. The reason is, I think, that there can now be few, if any, amongst those who aspire to be pharmacists who would feel competent to submit themselves to an examination in the latin language – or, perhaps, in other of the subjects specified in section 3(4). Subjects which were first prescribed by statute 150 years ago have now come to be seen as irrelevant to practice as a pharmacist.
44. Section 4(1) is in these terms:

"Byelaws may provide that any person who satisfies such conditions as to character and otherwise as are prescribed by the byelaws and either holds a degree granted in respect of pharmacy by any University in the United Kingdom or a diploma granted in respect of pharmacy in any place outside the United Kingdom or has passed the examinations necessary for obtaining such a diploma shall be qualified to have his name registered –

(a) without his qualifying to have his name registered in accordance with the requirements of last foregoing section and of byelaws made thereunder; or

(b) upon his so qualifying in accordance with those requirements relaxed to the prescribed extent".

The effect of section 4 is that a person may qualify for registration under byelaws made under and for the purposes of that section, notwithstanding that he never sits an examination in the subjects specified in section 3(4) or obtains from the examiners a certificate of competence under section 3(5) of the Act.

45. The evidence filed on the present application shows that section 4(1) has replaced section 3 as the normal route of entry for United Kingdom applicants. The position is explained in a witness statement made by Dr Robert Dewdney, Head of the Educational Division of the Society. At paragraph 15 he states:

"The system of training and qualification of pharmacists has evolved over the years as patterns of training and public expectation have changed. In the years following the coming into force of the Act in 1954 many people trained as pharmacists by a period of apprenticeship and college training, and the Society set examinations under section 3 of the Act. With the growth of the universities and polytechnics and the expansion of tertiary education in the 1960's, it became common for people wishing to qualify as pharmacists to take a degree in pharmacy. There has been a growing element of public protection in the consideration that has been given to educating pharmacists; indeed from 1970 the Society required a pharmacy degree of those who wished to qualify for the profession, and it ceased to set a registration examination. Pharmacy graduates were also required to undertake preregistration experience in a pharmacy prior to registration." [emphasis added]

It is clear that the reference to a "registration examination" in that passage is to an examination under section 3 of the 1954 Act. As will appear, the Society does now require graduate entrants under section 4(1) to pass a registration examination; but that is not an examination which includes the subjects specified in section 3(4); and, on a proper analysis, it is not an examination held under section 3 of the Act.

46. For completeness I should mention that section 4(2) of the 1954 Act provides for a further route of entry (in accordance with byelaws to be prescribed) for those who are qualified military dispensers or are registered as pharmaceutical chemists in Northern Ireland. Section 4A – inserted by the Pharmaceutical Qualifications (EEC Recognition) Order 1987 (SI 1987/2202) extends the right to be registered to those nationals of member States of the European Union who hold an appropriate European diploma. Nothing turns on those provisions in the present context.

The power to make Byelaws

47. Section 16 of the 1954 Act confers a general power to make byelaws for the purposes of that Act. It is in these terms:

"The Council may make such bye-laws as they think necessary for the purposes of any provision of this Act referring to bye-laws; but no bye-law made by virtue of this Act shall come into operation until it is approved by the Privy Council."

That statutory power is superimposed on the powers to do whatever the Society otherwise could do as a body incorporated under the royal prerogative; and, in particular, on the power to make byelaws conferred by article 17 of the 1953 Charter. Article 17 is in these terms:

"That the Council shall be authorised to make, and when made to alter and revoke, byelaws for all or any of the purposes for which byelaws may by the express provisions of this Our Charter be made and such other byelaws as from time to time seem to the Council requisite for the management and regulation of the affairs and property of the Society and the better execution of this Our Charter and the furtherance of the objects of the Society."

It is open to question whether the effect of section 16 of the Act is that the statutory power replaces, or restricts, the exercise of the power conferred by article 17 of the charter in relation to byelaws made for the purposes of the 1954 Act.

The 1997 Byelaws

48. The current byelaws of the Society were approved by the Privy Council in January 1997. There is nothing in the byelaws themselves, or otherwise in the material before the Court, to indicate that those byelaws were made under any particular power, whether conferred by the charter, by the 1954 Act or the general law; nor whether they were made by the Council or by the members in general meeting. The proper inference, I think, is that they were made by the Council under whatever powers were properly exercisable for that purpose.
49. The 1997 Byelaws incorporate amendments first introduced in 1992 following a report by a Committee of Inquiry into the practice of pharmacy, appointed by the Nuffield Foundation in 1983 with the encouragement of the Minister of Health; and proposals made by an internal working party established by the Society. The terms of reference of the Inquiry included the review of the education and training of pharmacists. The internal working party was established to consider undergraduate and post-graduate pharmaceutical education. The position is explained by Dr Dewdney in paragraphs 16 to 22 of his witness statement. At paragraph 17 he states:

"The report ("the Nuffield Report") identified three deficiencies in the training then provided, one of which was the absence of a test of competence at the end of the pre-registration training period, and the report recommended the introduction of a formal written test."

The relevant recommendation is contained in paragraph 7.12 of the Nuffield Report – see, also, recommendation 76 in the summary of recommendations. The internal working party and the Council of the Society adopted that recommendation.

50. In order to give effect to the recommendation the Council decided to introduce a registration examination of multiple choice question format in subjects relevant to the practice of pharmacy in the fourth quarter of the twentieth century; that is to say, an examination which did not include the subjects specified by section 3(4) of the 1954 Act. It must be kept in mind that, by the 1970's, the latin language was rarely taught in schools within the comprehensive system; and that the introduction of graduate entry and the requirement of a degree in pharmacy had the result that entrants had already demonstrated an advanced level of academic knowledge in the relevant subjects.
51. Amended byelaws to give effect to that decision were put to the Privy Council and approved in 1992. The first examination under the new arrangements and in the new format was held in July 1993; and, as Dr Dewdney states in paragraph 22 of his witness statement, have been held in July and October of every year since that date.
52. In paragraph 20 of his statement Dr Dewdney observes:

"The Department of Health was involved in consideration of the vires of the Society to set the examination, and their advice was to the effect that section 3 of the Pharmacy Act 1954 empower the Society to set a registration examination."

We have not seen the advice which is said to have been given by the Department. For my part, I find it difficult to see how, consistently with the express requirement in section 3(4) of the 1954 Act that the subjects at any examination held under section 3 shall include the specified subjects (latin, botany, materia medica, pharmaceutical and general chemistry), section 3 could be the source of a power to hold a quite different examination which did not include those subjects. The power in section 3(4) to include "such other subjects as are prescribed" is a power to add additional subjects to those specified; it is not a power to discard the specified subjects. Be that as it may, there can be no doubt, as it seems to me, that there is power under section 4(1) to impose, as a condition of entry under that section, the requirement that the applicant passes a registration examination. Section 4(1) gives power to make byelaws so as to provide that any person "who satisfies such conditions as to character and otherwise as are prescribed by the byelaws" and who holds a degree or diploma in pharmacy shall be qualified to have his name entered on the register. I can see no reason why byelaws made under that section should not prescribe, as a condition "otherwise" than as to character, the need to pass an examination after graduation but before registration.

53. The advice recorded by Dr Dewdney in paragraph 20 of his statement is reflected in the definition, in byelaw 2 of section 1 of the 1997 Byelaws, of "registration examination". Unless the context otherwise requires that expression means "the examination for the purpose of Section 3 of the Pharmacy Act 1954". For the reasons which I have sought to explain, it seems to me that, in relation to the examination now set, following the decision of the Council in 1992, the definition is inapposite. The context does require that the expression "registration examination" in, say, byelaw 2 of Section XX (to which I am about to refer) does not mean an examination under Section 3 of the 1954 Act.
54. Section XIX of the 1997 Byelaws ("Registration of Overseas Pharmacists") is, as it seems to me, plainly made under and for the purposes of section 4 of the 1954 Act. It provides, inter alia, for the registration under reciprocal arrangements of person qualified to practise pharmacy in Australia or in New Zealand – see byelaws 3 and 4 in that section.
55. Section XX of the 1997 Byelaws is concerned with registrations not falling within section XIX. Byelaw 1A in section XX provides that the subjects for the registration examination shall include: "The Practice of Pharmacy including the implementation in practice of laws governing pharmacy and the application in practice of the Code of Ethics and Standards of Professional Practice of the Royal Pharmaceutical Society of Great Britain". A byelaw in those terms falls squarely within the words of section 3(4) of the 1954 Act . . . "and such other subjects . . . as are prescribed". One effect of byelaw 1A is that, if the examination route under section 3 of the 1954 Act were still offered in practice, the subjects for examination under section 3(4) would have to include "The Practice of Pharmacy" as there set out, as well as the subjects specified in that section – latin, botany, materia medica, pharmaceutical and general chemistry. But it is plain that byelaw 1A was not made with section 3(4) in mind; it was made in conjunction with byelaw 2; paragraph (iv) of which contains the requirement – first introduced in 1992 - that graduate entrants, qualifying under section 4(1) of the 1954 Act, should pass a registration examination. The fact that the byelaws are numbered 1A and 2 suggests strongly that byelaw 1A was introduced as an amendment after byelaw 2 was already in force.
56. Byelaw 2 of section XX of the 1997 Byelaws is in these terms, so far as material:

"A person who holds a degree of a University of the United Kingdom or of the Council for National Academic Awards, granted in respect of pharmacy at the conclusion of a course of study undertaken in the United Kingdom and in accordance with European Community obligations and provisions, and approved by the Council, need not be examined in the latin language, botany, materia medica, pharmaceutical chemistry and general chemistry and need not be granted the certificate mentioned in section 3(5) of the Pharmacy Act 1954 and shall be eligible to be registered as a pharmaceutical chemist provided he produces evidence to satisfy the Registrar:

(i) . . . ;

(ii) that he has attained the age of 21 years;

(iii) that he has obtained the appropriate degree;

(iv) in the case of a pharmacy trainee who commenced pre-registration training after June 30 1992 . . . that he has passed a registration examination;

. . .

(vii) . . . that he satisfactorily undergone a period of pre-registration training in accordance with this section; . . ."

The opening words of the byelaw are important. They reflect the condition, in section 4(1) of the Act, that entry by the section 4(1) route is open only to those who hold a degree in pharmacy granted by a University in the United Kingdom. The byelaw provides that the applicant for registration by that route need not have been examined in any of the subjects expressly referred to in section 3(4) of the Act; and need not have been granted a certificate of competence under section 3(5). That reflects the provision in paragraph (a) of section 4(1) that a graduate entrant "shall be qualified to have his name registered (a) without his qualifying to have his name registered in accordance with the last foregoing section and of byelaws made thereunder". Byelaw 2 recognises, correctly as it seems to me, that an applicant who has not satisfied the examiners in the subjects specified in section 3(4) could not be granted a certificate of competence within the meaning of section 3(5). But the byelaw imposes the requirement, in sub-paragraph (iv), that the applicant – if a pharmacy trainee who commenced pre-registration training after 30 June 1992 – must pass a registration examination. The significance of the date is that that requirement applies only to those who commenced pre-registration training after the amendments to earlier byelaws, made to give effect to the recommendation in paragraph 7.12 of the Nuffield Report, had been put before the Privy Council and approved – see the evidence of Dr Dewdney to which I have referred. As I have observed, it is clear from that evidence that, in practice, section 4(1) of the 1954 Act, provides the normal route of entry to the profession for United Kingdom entrants. It does so in conjunction with byelaw 2 in section XX.

57. Byelaw 3 in section XX provides that a person making application for registration in accordance with byelaw 2 shall pay a fee, whereupon, subject to the registrar being satisfied that all the conditions have been complied with, he shall be registered. Again, that byelaw is plainly made under and for the purposes of section 4 of the 1954 Act. Byelaws 4 to 25 are concerned with pre-registration training. They are capable of applying to the requirement as to practical training under section 3(4)(c) of the Act – if entry by that route were still offered in practice; but they are equally, if not more, apposite to the requirement for pre-registration training imposed, under paragraph (vii) of byelaw 2. The latter is a condition for the purposes of section 4 of the Act; so, also, as it seems to me, are byelaws 4 to 25.
58. Byelaw 26 is in these terms, so far as material:

"Subject to a satisfactory appraisal report by the pre-registration tutor after at least 39 weeks of pre-registration training have been undertaken . . . a pre-registration trainee shall be eligible . . . and after completion of at least 45 weeks of pre-registration training to sit the registration examination within eighteen months of such completion."

Again, that byelaw is capable of applying to the requirement as to . . . "periods of time and courses of study in connection with such examinations" . . . under section 3(4)(a) of the Act of 1954; but is more apposite to the requirement, under paragraph (vii) of byelaw 2 in section XX, that he should have undergone a period of pre-registration training . . . "in accordance with this section".

59. Byelaws 27 and 28 set out the conditions under which a pre-registration trainee who fails to pass the registration examination on the first or second attempt may retake the examination. Byelaw 29 is in these terms:

"A person who fails the registration examination at the third attempt will not normally be eligible for registration as a pharmaceutical chemist. In circumstances considered by the Council to be exceptional, the Council may specify conditions under which it is prepared to permit a pre-registration trainee to sit the examination on one further occasion."

The vires issue

60. The first issue on this appeal is whether it was within the powers of the Council to make a byelaw in the terms of byelaw 29 in section XX of the 1997 Byelaws. The judge held that it was, on the ground that it fell within section 3(4)(a) of the 1954 Act. I agree with Lord Justice Kennedy, for the reasons which he gives, that the reasoning which led the judge to that conclusion is difficult to sustain. But, for my part, I doubt if byelaws 27 to 29 were made with the section 3 entry route in mind. In my view, when read in context, it is reasonably clear that those byelaws were intended to be part of the scheme introduced by byelaw 2 in respect of graduate entry under section 4(1). Section 3(4)(a) of the 1954 Act is, to my mind, of no relevance in relation to the entry route under section 4(1) which has now become the norm for United Kingdom entrants.
61. The conclusion reached by the judge in relation to the power under section 3(4)(a) of the 1954 Act made it unnecessary for him to decide whether there was an additional or independent power under article 17 of the 1953 Charter. Lord Justice Kennedy has taken the view that the article 17 power is available, notwithstanding the express powers conferred by the 1954 Act. I find that difficult to accept. There are three factors which, as it seems to me, point in the opposite direction. First, Parliament thought it necessary to confer, by section 16 of the 1954 Act, an express power enabling the Council to make "such byelaws as they think necessary for the purposes of any provision of this Act referring to byelaws". That suggests that Parliament intended that the source of the power to make byelaws in connection with and for the purposes of the Society's functions under the 1954 Act should be found in the statute and not in the charter. Second, that pattern had been established in the Pharmacy Act 1852; which, by section 2, conferred express power to make byelaws for the purposes of that Act, notwithstanding that there was an existing power in the 1843 Charter to make byelaws for regulating the affairs of the Society and "for regulating and ascertaining the qualifications of persons to become Members Associates and Apprentices of the Society and for granting Diplomas and Certificates to Members Associates Apprentices and Students". Third, notwithstanding the existing power in the 1843 Charter, Parliament thought it necessary to extend the power in section 2 of the 1852 Act by a further express power to make byelaws, conferred by section 4 of the Poisons and Pharmacy Act 1908 – to which Lord Justice Kennedy has referred.
62. The effect of the Pharmacy Act 1852, in relation to the incorporation of the Society under the prerogative, was considered by Mr Justice Peterson in Jenkin v Pharmaceutical Society of Great Britain [1921]1 Ch 392. He held, at page 400, that the unlimited powers that would otherwise be exercisable by a body incorporated under Royal Charter were cut down by the statute. At page 400 he said this:

" It is also to be observed that s.1 of the Pharmacy Act, 1852, confirmed the [1843] charter, and that s. 2 which authorized the council to make byelaws for the purposes contemplated by the charter or the Act recognized that the only purposes of the Society were those which were contemplated either by the charter or by the Act; and I am of opinion that this amounts to a statutory limitation of the objects of the Society."

Equally, as it seems to me, it may be said with force that where Parliament has made express provision in the 1954 Act for the making of byelaws for the purposes of any provision in that Act, it is not open to the Council to exercise the power in the charter to make byelaws which could not be made under the power in the Act. In particular, in relation to its statutory functions in connection with the admission of persons to the register, I am persuaded that it is to the statute, and not the charter, that the court should look for the power to make byelaws.

63. In the present case, however, the distinction between the power to make byelaws conferred by article 17 of the 1953 Charter, and the powers conferred by the 1954 Act, is of no materiality. As I have indicated, it seems to me plain that byelaw 29 in section XX of the 1997 Byelaws is made for the purposes of a scheme which has its root in, and derives legitimacy from, section 4(1) of the Act. The scheme is established by byelaw 2 in section XX. The other byelaws in section XX (save, perhaps, byelaw 1) are ancillary to byelaw 2. Whether or not byelaw 29 could have any application in relation to examinations held under section 3 of the Act – if examinations under that section were now held under that section – the byelaw clearly does have effect as one of the conditions which must be satisfied in order to qualify for entry under section 4(1) of the Act. Section 4(1) enables conditions to be prescribed by byelaws; and section 16 enables such byelaws to be made for the purposes of the Act – including byelaws for the purposes of section 4(1) – as the Council thinks necessary.
64. It follows that in the context of the route provided by section 4(1) of the 1954 Act – which is the only route by which the present applicants have sought to qualify for registration – the challenge to byelaw 29 in section XX of the 1997 Byelaws must fail.

The discrimination issue

65. The appellants seek, in the alternative, to challenge byelaw 29 on the ground that it is discriminatory, and so arbitrary and irrational. On this second issue I am in entire agreement with the judgment of Lord Justice Kennedy. For the reasons which he has set out the point is without substance.

LORD JUSTICE RIX:

66. Two issues arise on the appeals. The first is whether byelaw 29 of Section XX of the 1997 Byelaws of the Royal Pharmaceutical Society of Great Britain (the 1997 Byelaws) is beyond the powers of the Society in stating that a person who has failed the Society's registration examination for the third time "will not normally be eligible for registration as a pharmaceutical chemist". That issue is a matter, principally, of the construction of the Society's charters and byelaws and of the Pharmacy Act 1954. The second issue is whether byelaw 29, even if nominally within the powers of the Society, is nevertheless to be regarded as ultra vires on the ground that it is exorbitant because discriminatory.
67. As to that second issue, I agree entirely with the judgment of Kennedy LJ and do not wish to say anything further.
68. As to the first issue, however, in the light of the different approaches taken by Kennedy LJ and Chadwick LJ, whose judgments I have had the opportunity of reading in draft, it is necessary for me to express my own views.
69. I gratefully adopt the history of the legislation affecting the Society and of its charters and byelaws, set out respectively in my Lords' judgments, as well as of the evidence relating to the registration examination which Chadwick LJ has discussed on the basis of the evidence of Dr Robert Dewdney, head of the educational division of the Society. There is no need to repeat all of that, but I will concentrate on the critical provisions.

The Supplemental Charter of 1953

70. The 1953 charter, although called a "Supplemental Charter", by article 2 replaced the original charter of 1843 "except in so far as it incorporates the Society, and authorises them to have a common seal and to sue and be sued".
71. The objects of the Society are set out in article 4 and include –

"To advance chemistry and pharmacy.

To promote pharmaceutical education and the application of pharmaceutical knowledge.

To maintain the honour and safeguard and promote the interests of the members in the exercise of the profession of pharmacy…"

72. In this connection article 17 sets out the Society's byelaw making power:

"17. That the Council shall be authorised to make, and when made to alter or revoke, byelaws for all or any of the purposes for which byelaws may by the express provisions of this Our Charter be made and such other byelaws as from time to time seem to the Council requisite for the management and regulation of the affairs and property of the Society and the better execution of this Our Charter and the furtherance of the objects of the Society."

73. It seems to me that that is a very wide byelaw making power. Article 19 contemplated that new byelaws would be submitted to the Privy Council to replace byelaws then in force.
74. It may be observed, however, that there is no express mention of the Society's register in this supplemental charter other than is implicit in article 6, which provides that the members of the Society shall consist of "all such persons as are for the time being registered pharmacists". Nor is there any express mention of the process of registration or examination. In the 1843 charter there had been no mention of a register either, although it had made provision for "Members" ("who shall have been examined in such manner as the Council of the said Society shall deem proper or shall have been certified to be duly qualified for admission as Members…") and for "Associates Apprentices and Students". The byelaw making power in the 1843 charter also covered inter alia "the times place and manner of examining Candidates for Admission". The Society's register was first mentioned in the 1852 Act ("An Act for regulating the Qualifications of Pharmaceutical Chemists"). Section II of the 1852 Act granted the Council power to make byelaws "for the Purposes contemplated by the [1843] Charter or by this Act…" Section 4 of the 1908 Act made further provision concerning registration and examination.

Pharmacy Act 1954

75. The Pharmacy Act 1954 (the "1954 Act") was a consolidating act (its long title was "An Act to consolidate certain enactments relating to pharmacy…"). It is mostly concerned with the keeping of a register. Thus sections 1/6 are headed "Registration of pharmaceutical chemists", sections 7/13 are headed "Removal from and restoration to the register, etc", sections 14/17 are headed "Miscellaneous provisions…", sections 18/21 "Offences" and sections 22/26 "Supplemental". The byelaw provision is section 16, which provides –

"The Council may make such byelaws as they think necessary for the purposes of any provision of this Act referring to byelaws; but no byelaw made by virtue of this Act shall come into operation until it is approved by the Privy Council."

76. Section 1 provides for the appointment of a registrar. Section 2 provides for a register and registration. Section 2(1) deals with the registration of all those who were already entitled to be registered in the register "established in pursuance of the Pharmacy Act 1852". Section 2(2) deals with future registration under the 1954 Act, thus –

"(2) Subject to the provisions of this Act, a person shall be entitled to have his name registered if he –

(a) satisfies the registrar, or on appeal the Council, that in accordance with provisions of section 3 or 4A of this Act or of any byelaw made under section four of this Act, he is qualified to have his name registered…"

77. Section 3, which is headed "Qualification by examination for registration", provides as follows:

"(1) It shall be the duty of the Council to appoint examiners to hold examinations for the purposes of this Act…

(4) The subjects at any such examination shall be the latin language, botany, materia medica, pharmaceutical and general chemistry and such other subjects (excluding the theory and practice of medicine, surgery and midwifery) as are prescribed; and byelaws may provide –

(a) for periods of time and courses of study in connection with such examinations and for dividing such examinations into two or more parts;

(b) that no person may be a candidate at any such examination unless he satisfies the Council that he has received such a general education as the Council consider adequate for a registered pharmaceutical chemist;

(c) that no such certificate as is mentioned in the next following subsection shall be granted to any person in consequence of any such examination unless he satisfies the Council that he has received such practical training in the subjects of the examination as the Council consider adequate.

(5) Subject to the foregoing provisions of this section, the examiners may grant a certificate of competence to practise as a pharmaceutical chemist to any person who satisfies them at any such examination that he is competent so to practise; and a person to whom such a certificate is granted shall be qualified to have his name registered."

78. Section 4 is headed "Qualification by degree, diploma, etc for registration" and section 4(1) provides –

"(1) Byelaws may provide that any person who satisfies such conditions as to character and otherwise as are prescribed by the byelaws and either holds or has held a degree granted in respect of pharmacy by any university in the United Kingdom or a diploma granted in respect of pharmacy in any place outside the United Kingdom or has passed the examinations necessary for obtaining such a diploma shall be qualified to have his name registered –

(a) without his qualifying to have his name registered in accordance with the requirements of the last foregoing section and of byelaws made thereunder, or

(b) upon his so qualifying in accordance with those requirements relaxed to the prescribed extent."

79. Section 4A and Schedule 1A (added by amendment pursuant to the Pharmaceutical Qualifications (EEC Recognition) Order 1987) provide for "Qualification by appropriate European diploma for registration".
80. Thus there are three ways to qualify for registration, under sections 3, 4 or 4A. Qualification under section 4 may involve a hybrid situation, for section 4(1)(a) permits qualification without section 3 qualification but section 4(1)(b) provides for qualification by means of section 3 qualification "with those requirements relaxed to the prescribed extent". In either event, byelaws may make it necessary for a person to satisfy "such conditions as to character and otherwise" as are prescribed. Thus section 4(1) can, in the case of a person who has a pharmacy degree from a UK university or a pharmacy diploma from any place outside the UK, both relax requirements under section 3 totally or in part and impose fresh conditions.

The 1997 Byelaws

81. The 1997 byelaws completely replaced all previous byelaws, which were revoked. Their form was to deal with different subject-matters in different "Sections": each section had its own separately numbered byelaws. Section XX is headed "Registrar and Registrations". For present purposes the importance of Section XX is what it says about the "registration examination", because it is the failure to pass that examination on a third attempt that will, pursuant to byelaw 29, normally prevent a person being eligible for registration. The registration examination is introduced in byelaw 1A, which defines what its subjects shall include, viz "The Practice of Pharmacy including the implementation in practice of laws governing pharmacy and the application in practice of the Code of Ethics and Standards of professional Practice of the Royal Pharmaceutical Society of Great Britain". As Chadwick LJ has remarked, byelaw 1A appears to have been introduced by way of amendment. Subject to byelaw 1A, the registration examination is introduced in byelaw 2 as the fourth of up to 8 numbered conditions which a person seeking registration must fulfil. It appears to take place after, or towards the end of, a period of 52 weeks of "pre-registration training", which involves full-time employment in up to two "pharmaceutical establishments" which have to be approved by the Society. There are detailed provisions regarding this period of pre-registration training in byelaws 4/26. The system of pre-registration training predated the 1997 byelaws, but the registration examination was introduced in 1992 as a new requirement: it only applies as a condition for registration to persons who commenced their pre-registration training after 30 June 1992 (see byelaw 2(iv) below). Dr Dewdney confirms in his evidence that the registration examination was first held in July 1993, following the adoption in 1992 of amended byelaws designed to implement a recommendation of the Nuffield Report that there should be a test of competence at the end of the pre-registration training period.
82. Byelaw 2 needs to be set out in full:

"A person who holds a degree of a University of the United Kingdom or of the Council for National Academic Awards, granted in respect of pharmacy at the conclusion of a course of study undertaken in the United Kingdom and in accordance with European Community obligations and provisions, and approved by the Council, need not be examined in the latin language, botany, materia medica, pharmaceutical chemistry and general chemistry and need not be granted the certificate mentioned in section 3(5) of the Pharmacy Act 1954 and shall be eligible to be registered as a pharmaceutical chemist provided he produces evidence to satisfy the Registrar:

(i) as to his identity;

(ii) that he has attained the age of 21 years;

(iii) that he has obtained the appropriate degree;

(iv) in the case of a pharmacy trainee who commenced pre-registration training after June 30 1992, or a pharmacy student in a pharmacy degree sandwich course approved by the Council who commenced his 27^th week of pre-registration training after that date, that he passed a registration examination.

(v) that he is of good character;

(vi) that he is in good health, both physically and mentally;

(vii) by a declaration upon an official form obtainable from the Registrar that he has satisfactorily undergone a period of pre-registration training in accordance with this section; and

(viii) that in the event of his having obtained the degree at a date when the degree was not recognised by the Council, he has complied with such other requirements as may be prescribed by the Council."

83. Before considering in further detail the requirements for eligibility for registration set out in byelaw 2, it is necessary, in the light of Chadwick LJ's analysis, to take into account the definition of "registration examination" found in section I, where the following is found:

"Registration examination means the examination for the purpose of Section 3 of the Pharmacy Act 1954."

84. Although the definitions begin under the cautionary language "unless the context otherwise requires", I do not think that it is possible on that ground to redefine the stated meaning of "registration examination" so as to make it into an examination which is not for the purpose of section 3. I am therefore unable to agree with Chadwick LJ that the registration examination is sanctioned only by section 4(1) and not by section 3 of the 1954 Act. This is a matter to which I will revert.
85. Byelaw 2 demonstrates the following matters. (1) A person who holds a pharmacy degree obtained from a university of the UK (or from the Council for National Academic Awards) need not be examined in the (as it were) compulsory subjects of latin language, botany, materia medica, pharmaceutical chemistry and general chemistry otherwise prescribed by section 3(4) of the 1954 Act, but must undergo a period of pre-registration training followed by a registration examination. (2) The registration examination is, by definition, an examination under section 3 of the 1954 Act. Consistently with that definition, there is a dispensation of the need to be examined in the five subjects mentioned in section 3(4). Presumably that dispensation is granted pursuant to section 4(1)(b). If the registration examination had been set entirely under section 4(1), then there would have been no need for any byelaw to address the five compulsory subjects separately: all that would have been necessary would have been the more appropriate provision, pursuant to section 4(1)(a), that a person with the necessary degree was permitted to dispense entirely with being qualified by reason of a section 3 examination. (3) Apart from the requirement of a registration examination, the other conditions of eligibility for registration are presumably prescribed (inter alia) pursuant to the language in section 4(1)(a) that permits byelaws to provide that persons seeking registration on the basis of their UK degree may have to satisfy "conditions as to character and otherwise". Thus, for example, the requirement of pre-registration training may be said to be a condition "otherwise". (It is possible, however, that that particular requirement is already and alternatively permitted under section 3(4)(c), or at any rate would have been so if the concept of a certificate of competence within section 3(5) had survived its dispensation by byelaw 2.) If they are not prescribed pursuant to section 4(1), such conditions would have to be found in the byelaw making power of the 1953 charter, or not at all.
86. It is not suggested that any of the conditions specified under section 4(1) are beyond the byelaw making power of the Society. It is byelaw 29 with its "three strikes and out" provision that is attacked as ultra vires.

The judge's reason for upholding byelaw 29

87. I agree with Kennedy LJ and Chadwick LJ that, on the basis that the power to make byelaw 29 has to be found expressly within section 3(4) itself, the reason given by the judge for upholding the byelaw cannot be sustained. He found the power in the words "periods of time" within section 3(4)(a), but in my judgment those words are dealing with questions of timing, to be found for instance in byelaws 26/28, which prescribe when a candidate can apply to sit his registration examination. In any event, nothing in those byelaws actually makes it impossible to sit a fourth examination as a matter of timing: they simply fail to make any provision for a fourth attempt, a lacuna immediately explained by the controversial byelaw 29. Where byelaw 29 contemplates permission being given exceptionally for a fourth attempt, the Council will itself specify the "conditions under which it is prepared to permit" one last attempt. Such conditions might clearly include some provision as to the period of time within which the candidate would be required to undergo the examination.

Section 4 as the source of the power

88. The question therefore next arises whether the power to make byelaw 29 can be found in the byelaws expressly contemplated by sections 4 and 16 of the 1954 Act. I agree with Chadwick LJ that it does. In my judgment, that remains the position even though I am unable to follow him to the extent of saying that the registration examination has nothing to do with section 3. Even though the registration examination is authorised and set under section 3, nevertheless, where candidates seek registration under section 4, the 1954 Act expressly allows byelaws to prescribe conditions of eligibility. One of those conditions prescribed by the byelaws is a registration examination set under section 3. It seems to me that such byelaws, in requiring a registration examination as a condition to registration, are entitled to provide that such an examination shall be passed within three attempts. It is not suggested that such a requirement is in itself irrational. The power to impose that additional condition in relation to the registration examination can be found expressly provided for in section 4(1) in one or other of two places: either in the words "such conditions as to character or otherwise" or in the words of subsection (1)(b) "in accordance with those requirements [viz the requirements of section 3] relaxed to the prescribed extent". As for the former phrase, I see no reason why a requirement that an examination must be passed within three attempts should not fall within the language of "conditions as to character and otherwise". An ability to pass an examination within three attempts, if not a matter of "character" in the sense in which that word is probably there used, is still relevant to the capacity of a person to perform successfully in the practice of a profession, perhaps under conditions of considerable stress, and in situations where errors can be injurious to the public and possibly fatal. As for the latter phrase, it seems to me that if byelaws can prescribe the extent to which the requirements of section 3 can be relaxed, and if they can be relaxed to the extent of replacing the compulsory section 3 examination with a registration examination, then they can be relaxed by allowing the section 3 examination to be replaced by the registration examination on terms that the registration examination must be passed within three attempts.
89. In the present case the appellants seek registration under section 4 and not under section 3(5). In the circumstances it must suffice that there be byelaw making power for the purpose of section 4(1). Therefore on this ground alone, the appellants must fail on the first issue.

Article 17 of the 1953 charter as the source of power

90. In the circumstances, it is in one sense unnecessary for me to determine whether article 17 can operate in this context outside any limitations created by the 1954 Act. Since, however, Kennedy LJ and Chadwick LJ have differed on this question, I feel obliged to express my opinion. I do so on the assumption that the power to make byelaw 29 is not given by the 1954 Act.
91. On behalf of the appellants Mr Andrew Arden QC submitted that Parliament, by legislating concerning the examination requirements for registration has cut down the broader power otherwise granted, through the Society's charter, by the royal prerogative. He relied on the famous decision in Attorney General v. De Keyser's Royal Hotel Limited [1920] AC 508, where Lord Dunedin said (at 506):

"None the less, it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: "What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on the prerogative?"

In that case the Defence Act 1842 provided a comprehensive code for the taking of land in times of peace or war upon the payment of compensation. The government, however, claimed to be entitled to requisition De Keyser's Hotel under the royal prerogative in aid of the defence of the realm without paying compensation. The statutory code ousted the possibility of an inconsistent exercise of the prerogative.

92. In Regina v. Secretary of State for the Home Department, Ex parte Fire Brigades Union [1996] 2 AC 513 the De Keyser principle was discussed in both this court and the House of Lords, although in the event only Morritt LJ and Lord Browne-Wilkinson applied it directly (at 538, 552), whereas Sir Thomas Bingham MR, Hobhouse LJ and Lord Lloyd of Berwick thought that it was on the facts inapplicable (at 522F, 533G, 573C). A useful collection of the leading statements of the principle can be found in the judgments of Hobhouse LJ and Morritt LJ at 532/3 and 537/8. It could be debated whether the essence of the principle is that Parliament has legislated in the field and thereby ousted the prerogative, or that the purported exercise of the prerogative is excluded because it is inconsistent with the statute. Certainly both Morritt LJ and Lord Browne-Wilkinson, in applying the principle, stressed that the invalid conduct of the Secretary of State was inconsistent with the statute (at 538H and 552G). I think that there is great force in the statement of Hobhouse LJ at 532G that –

"This principle is dependent upon the executive having to invoke a prerogative power in order to justify its actions and upon the exercise of that power in that manner being inconsistent with statutory law."

93. Such inconsistency could be demonstrated either expressly or by implication. One way of demonstrating inconsistency would be by showing that the statute had covered the whole ground, leaving no room for what the executive had purported to do under the prerogative.
94. In the present case it does not seem to me that the 1954 Act has covered the whole ground, whether that ground is to be regarded as the setting of examinations or the requirements for registration. In particular, it does not seem to me that byelaw 29 is inconsistent with anything in section 3. I do not regard a byelaw limiting the number of times an examination may be taken as inconsistent with a statute providing for the setting of that examination. Although section 3(1) speaks of a "duty of the Council to appoint examiners to hold examinations", that is not the same as a duty to examine a candidate however many times he has failed the Society's examination. That language is not, for instance, the same as the language of section 8 of the Pharmacy Act 1852 on which Mr Arden relied regarding examiners "authorised and empowered to examine all Persons who shall present themselves for Examination". The only place where section 3 comes at all close to traversing the ground of byelaw 29 is in subsection (4)(b), where it is said that byelaws may provide –

"…that no person may be a candidate at any such examination unless he satisfies the Council that he has received such a general education as the Council consider adequate for a registered pharmaceutical chemist".

95. The significance of that subsection is that it is the only place where section 3 considers whether any conditions may be placed on the eligibility of a candidate to sit the examination. Yet it was accepted by Mr Arden that the Society would have power to provide for other conditions of eligibility, such as age or good character, and that the source of such power was to be found in article 17 of the 1953 charter. Thus he accepted that the permissive "may" in section 3(5) ("the examiners may grant a certificate of competence to practice…to any person who satisfies them at any such examination that he is competent so to practise…") is designed to allow for just such additional conditions of eligibility for registration. That concession was well founded in as much as there is a clear distinction drawn between that "may" and the "shall" of the concluding words of the subsection ("and a person to whom such a certificate is granted shall be qualified to have his name registered"). If such conditions may be imposed after taking the examination, I see no reason why conditions cannot be imposed before the taking of the examination.
96. It was common ground that article 17 of the 1953 charter was wide enough, in the absence of statutory interference, to permit byelaw 29. In the light of that fact and of Mr Arden's concession, which as I say I think is well founded, I am satisfied that a point which otherwise might have troubled me is a bad one. That is the thought that the absence of any express reference to registration or examination from the 1953 charter was part of a deliberate decision to leave that field entirely to statute: see the brief history of the matter set out in paragraph 8 above. As it is, I am satisfied that the 1953 charter should not be so regarded. The 1953 charter refers to members as "registered pharmacists"; it refers to "students of the Society"; it refers to the promotion of pharmaceutical education and the application of pharmaceutical knowledge as being within its objects. In the circumstances I am satisfied that there was no intention to leave the field of registration and examination entirely to statute, and in any event I remain of the view that there is nothing inconsistent with the 1954 Act in setting a limit to the number of times which the examination may be taken.
97. Chadwick LJ has expressed the contrary view, however, essentially on the ground that in the 1954 Act, as previously in the 1852 Act and again in the 1908 Act, there was a consistent pattern to be found whereby each statute contained its own section empowering the Society to make byelaws for the purposes of its provisions. I recognise the force of that point, but would prefer to see that pattern as a drafting technique to ensure that byelaws for the purposes of the statute in question could be made, rather than as an implied limitation on the byelaw making powers under the charter. I revert to the point accepted by the appellants, that the article 17 byelaw making power continues to exist for the purpose of imposing additional restraints, such as age or character, on the eligibility for registration. Provided the byelaw is not irrational, and there is no complaint that it is, I do not see why the Society cannot provide for an additional condition on the eligibility for registration in the passing of the required examination within three attempts.
98. On this point, therefore, I find myself in agreement with Kennedy LJ.

Conclusion

99. It follows that either on the reasoning which has appealed to Chadwick LJ with respect to the byelaw making power pursuant to section 4(1) of the 1954 Act (even, as I would regard the matter, in connection with a section 3 examination), or on the reasoning which has appealed to Kennedy LJ with regard to the Society's powers under article 17 of its 1953 charter, I would decide the first issue against the appellants. In the circumstances I too would dismiss these appeals.
ORDER: Appeal dismissed with costs; leave to appeal refused. (Order does not form part of approved Judgment)