Higham v Horton

S. 13 of the Disability Discrimination Act 1995 (“the 1995 Act”) provides (so far as material):

The issue on this appeal is whether a pupil barrister has “membership” of a trade organisation. It is not in dispute on this appeal that the barristers’ chambers where the pupil is doing his pupillage with a pupil master who is a member of those chambers is a trade organisation within s. 13(4).

It is an appeal by Meurig Iestyn Horton from the order made by the Employment Appeal Tribunal (“the EAT”), the President, Burton J., presiding, whereby it allowed the appeal of the Respondent, Paul Higham on behalf of himself and each of the other members of 1 Pump Court Chambers (“the Chambers”) from the decision of an Employment Tribunal (“ET”) sitting at London Central. By that decision sent to the parties on 7 August 2003 the ET held that Mr. Horton might pursue his claim of disability discrimination against the Respondent pursuant to s. 13. In reaching that decision the ET decided two contested issues: (1) that the Chambers were a trade organisation within s. 13(4), and (2) that Mr. Horton by applying for a pupillage in the Chambers was applying for membership of that organisation within s. 13(1). The EAT, on the appeal to it, agreed with the ET on the first issue but disagreed with the ET on the second. Mr. Horton applied to this court for permission to appeal. Mummery L.J. said that Mr. Horton did not have a real prospect of success on the appeal but adjourned the application to the full court on the footing that the appeal raised an important point on the construction of the 1995 Act.

I can summarise the facts shortly. Mr. Horton was born on 24 March 1961. As a mature student he applied for pupillage with the Chambers and was offered one of two available places for a year commencing October 2001. In September 2001 Mr. Horton informed the Chambers that he could not take up the pupillage because of ill-health. He applied to the Chambers for a postponement of his pupillage so that it would begin in October 2002, by which time he hoped to be fit enough to take it up. The Chambers decided not to grant him a deferral. Effectively, as the ET found, that decision prevented him from taking a pupillage with the Chambers.

On 1 March 2002 Mr. Horton presented an Originating Application to the ET, claiming disability discrimination by the Chambers in contravention of ss. 5(2) and 6(1) of the 1995 Act. That was later amended to a claim based on s. 13. It was not in dispute that Mr. Horton is disabled for the purposes of the 1995 Act but the Chambers took the point that as he could not bring himself within s. 13 the ET had no jurisdiction to hear his complaint.

I need say nothing further on the ET’s and the EAT’s decisions on the trade organisation point.

On the issue of membership, the ET referred to the definitions in the Shorter Oxford Dictionary of “member” and “membership”. It said that there were various definitions of “member” but that the only one relevant for its purposes was “Each individual belonging to a society or assembly …. one who takes part in anything”. It referred to “membership” being defined as “the condition or status of being a member of a society etc.” It looked at what it called “the components of a set of chambers” and referred to 5 categories: (1) barristers who are the members of chambers as defined in the Chambers’ constitution, (2) the senior and deputy clerk who have under that constitution the status of members, (3) barristers who are not members of the Chambers under the constitution but practise from the Chambers as “door tenants” or “squatters”, (4) pupils, (5) staff. Of pupils, the ET said:

The ET asked itself which of those categories were members of the trade organisation under s. 13. It considered that a purposive construction should be applied and the ordinary dictionary meaning of the term used rather than the specified definition in the Chamber’s constitution. It accepted that pupils could not be members of the Chambers under their constitution nor under Bar Council regulations, but it said that that did not mean that pupils could not qualify for protection under s. 13 and it said that it was persuaded that “the pupils are at least members of the Chambers in the sense that they have the statutory protection accorded to such persons” (para. 9 of the ET’s decision). It referred to the fact that the Sex Discrimination Act 1975 (“the 1975 Act”) and the Race Relations Act 1976 (“the 1976 Act”) have sections which are the equivalent of s. 13 and that in 1990 by amending legislation a new s. 35A was introduced into the 1975 Act and a new s. 26A was introduced into the 1976 Act to deal with discrimination by barristers against applicants for pupillage or tenancy. It noted that the 1995 Act contained no provision equivalent to s. 35A and s. 26A, but that it is to be amended from October 2004 to contain such a provision. However, the EAT thought it purposeless to speculate on the reasons for such omission in the 1995 Act and for the intended inclusion later this year. It looked at the Chambers’ constitution and drew a distinction between a trainee, which is what a pupil is, and a tenant in the Chambers. It expressed its conclusions thus:

On this appeal Mr. O’Dempsey repeats the submission he made to the ET and the EAT that the concept of “membership” of a trade organisation, on a true construction of s. 13, includes a pupil barrister. He contends that the ET’s approach was correct. Whilst he argues that the membership of a trade organisation for the purposes of s. 13 cannot be determined by the organisation’s own definition of who are its members in its constitution as that would permit abuses to arise, he took us through the Chambers’ constitution for the role and duties of pupils. These include a requirement that the pupil be present in Chambers each working day between specified hours which can be extended if the pupil’s supervisor so required: and in relation to pupils in the second six months of pupillage when they have a right of audience in court, duties are imposed by the Chambers in relation to attendance in court. Another paragraph of the constitution refers to “the recruitment of pupils …. to chambers”. There is a specified process for selecting pupils and pupils have the right to use the Chambers’ library and are provided with keys and security codes. Fees earned by the pupil in his second six months are free of clerks’ fees unless those fees are received after the end of the pupillage. Pupils are allowed to receive remuneration for work done for members of the Chambers other than their pupillage supervisor. The constitution provides for a Pupil’s Forum to implement the policies determined by the Chambers for the training of pupils. Provision is made for complaints by tenants or door tenants against pupils with the possible sanction, if a complaint of serious misconduct is upheld, of the pupil being required to leave the Chambers. Provision is also made for dealing with complaints by applicants for pupillage and for tenancy.

Mr. O’Dempsey submits that the concept of a member of a trade organisation is intended to extend, in accordance with the social policy governing the 1995 Act, to include all levels of membership of the organisation. He includes as members of a set of barristers’ chambers even those doing a “mini-pupillage”. He points out that once the Chambers’ offer of pupillage is accepted, the person accepting the offer has a different status from that of a mere visitor to the Chambers. He submits that the pupil has a limited form of membership of the Chambers for a determined period. He argues that the section is designed to be comprehensive in its coverage of the whole process whereby a person has a relationship other than that of a member of the public with the organisation. Another way he puts it is in ground 5 of the grounds of appeal, viz.

Mr. O’Dempsey referred to the two aspects of what constitutes disability discrimination in relation to a trade organisation, that is to say, for a reason relating to a disabled person’s disability, treating him less favourably and failing to comply with a duty to make adjustments (see s. 14(1) and (2) of the 1995 Act), and submitted that, in the light of those duties and the social purpose of the legislation, the concept of “membership” of a trade organisation should be construed widely. He prayed in aid the remarks of Lord Diplock in R. v National Insurance Commissioner, ex p. Hudson [1972] AC 944 at p. 1005, where it was said of one of the Acts which introduced the welfare state, the National Insurance (Industrial Injuries) Act 1946, that to find the meaning of particular provisions in such social legislation called for a purposive approach to the Act as a whole to ascertain the social ends it was intended to achieve and the practical means by which it was intended to achieve them, and that meticulous linguistic analysis of words and phrases used in different contexts in particular sections of the Act should be subordinate to the purposive approach.

Mr. O’Dempsey sought to derive assistance from the provisions in the Code of Conduct of the Bar relating to insurance of barristers and submits that they necessarily recognise that pupils practising from chambers in the second six months of pupillage are members of chambers. If wrong on the scope of the meaning of membership, he submits that applicants for a year’s pupillage like Mr. Horton are applicants for membership of chambers because such pupils in the second six months would be able to appear in court and thereby would be carrying on the profession of a barrister from the pupillage chambers.

Mr. Napier for the Chambers supports in general the reasoning and conclusion of the EAT. He relies in particular on the assistance given by s. 13(4) to ascertaining the meaning of “membership of a trade organisation”, pointing out that the organisation, when not of workers or employees, is one whose members carry on a profession or trade for the purposes of which the organisation exists. He says that on that test a mini-pupil in chambers is not a member because he does not carry on a profession. Nor, he argues, is a pupil, because in the first six months he cannot appear in court, and even in the second six months, the pupil, if he obtains the permission of his pupil master or head of chambers, appears in court, he does not do so as a barrister, as that requires a practising certificate which is only obtainable on the successful completion of pupillage. The pupil is not deemed competent to offer legal services on his own account. Mr. Napier further submits that membership of a trade organisation connotes having rights and obligations fundamental to the management and governance of the organisation. Thus members of the Chambers under the constitution have voting rights and may be appointed to chambers’ committees, unlike pupils.

Mr. Napier further submits that the omission from the 1995 Act of the specific provisions dealing with applications for pupillage which were introduced in 1995 into the 1975 Act and the 1976 Act support the view that Parliament thought that such applications were not covered by s. 13. He also seeks to rely on the express adoption by Parliament in r. 35A(4) of the 1975 Act and in s. 26A(4) of the 1976 Act of the meaning of the terms “pupil”, “pupillage”, “tenancy” and “tenants” as that commonly associated with their use in the context of a set of barristers’ chambers. He argues that it is probable that Parliament likewise would adopt that meaning of membership of a trade organisation when the organisation is a set of barristers’ chambers, which is commonly associated with the use of “membership” in the context of such a set.

The issue before us is one of statutory construction. The terms “member” and “membership” are not defined and accordingly they must be given their ordinary meaning in the context in which they are used. That does not mean that one out of a number of dictionary meanings should be adopted as the ET did, particularly when the dictionary meanings it selected were those for membership of a society or assembly. The context of “member” and “membership” which is relevant is that of being a member or membership of a trade organisation, and by s. 13(4) the definition includes an organisation whose members carry on a particular profession or trade. That in itself is sufficient to invalidate Mr. O’Dempsey’s impossibly wide definitions of all who, he says, fall within the concept of membership of a trade organisation. If he is right on his test of not being a mere visitor to the organisation or having a relationship other than that of a member of the public with the organisation or his ground 5 definition, included within the membership of a trade organisation would be persons who in ordinary parlance would never be called members of it, for example the cleaning lady engaged to dust and clean the premises, or the junior clerk in a set of barristers’ chambers, or the mini-pupil still at school or university, wanting to see what life was like at the Bar and obtaining some work experience. None of them carries on the profession of a barrister.

Mr. O’Dempsey’s invocation of a purposive approach in social legislation such as the discrimination legislation so as to give an inclusive meaning to “membership” and “member” is one that I view with caution. The 1995 Act is not like the Act referred to in Hudson by Lord Diplock in his dissenting speech. There, as Lord Diplock pointed out at p. 1005, the social purpose of injury benefit was to provide the claimant with an income for a period not exceeding six months from the date of the accident while he was incapable of work. The benefit would fail in its social purpose unless it was allowed quickly, and Parliament, Lord Diplock said, must have contemplated a simple and speedy procedure in the majority of cases. In the discrimination legislation, Parliament has not proscribed all discrimination but has made unlawful discrimination in certain fields only and in those fields by the statutory language it has limited the circumstances where discrimination is unlawful. Of course it is right to give the statutory language determining those circumstances as broad a construction as the language can reasonably bear, but it would be wrong to give the ordinary and readily understandable words in s. 13 some artificially extended meaning, and in my judgment that is what Mr. O’Dempsey is asking us to do.

However, I would also reject Mr. Napier’s submission that assistance on the meaning of “membership” in s. 13, applying as it does to trade organisations and not making specific references to the Bar, can be obtained from the meaning given in s. 35A of the 1975 Act and s. 26A of the 1976 Act to terms other than “member” or “membership” in a section confined to the Bar.

I turn to Mr. O’Dempsey’s alternative submission, made in the course of his reply, that an applicant for a pupillage which covers the second six months of pupillage when the pupil may appear in court on his own, is an applicant for membership of the trade organisation which is the set of barristers’ chambers where he is doing his pupillage. Mr. O’Dempsey submitted that in such a case the pupil does carry on the profession of a barrister. Mr. Horton’s pupillage was for a whole year.

I am not able to accept this alternative submission for the following reasons.

First, the submission distinguishes between an applicant for the first six months’ pupillage (and the necessary year’s pupillage is very frequently divided into two periods of six months spent in different chambers) who is accepted by Mr. O’Dempsey not to be an applicant for membership, and an applicant for pupillage for a period which is confined to, or covers, the second six months, who is said to be such an applicant. Such a distinction seems to me highly artificial, given that both periods are part of the year’s training which the Bar Council requires to be undergone before the trainee obtains a practising certificate and can call himself a barrister. Further, the pupil has no absolute or unconditional right to appear in court in the second six months of his pupillage. His pupil master can refuse to certify that he has completed pupillage satisfactorily. In my opinion, to say of an applicant for pupillage covering the second six months that he is applying for membership of a set of barristers’ chambers because of the possibility that he will be allowed to appear in court in those six months and to that extent to practise the profession of barrister, even though in fact not a barrister with a practising certificate, is a strange use of language.

Second, to determine whether or not a person is a member of a trade organisation necessitates a consideration of the rights and duties of that person in relation to that organisation. In the present case that requires an assessment of whether the sum of the rights and duties of the pupil is such as to bring the pupil within the concept of member. One must look in the first place at what the Chambers’ constitution provides, though I of course accept that a set of barristers’ chambers cannot, by narrowly defining membership of that set, thereby confine the meaning of membership for the purposes of the 1995 Act. It is clear from the constitution, as is only common sense, that an applicant for pupillage is seen as distinct from an applicant for a tenancy. Pupils are trainees, in receipt of a form of bursary from the Chambers, and are being trained by their pupillage supervisors. Further, a pupil is different from a tenant who is required to pay rent and other chambers’ expenses and who participates in the management of the Chambers. The constitution provides for the Chambers to be governed by the members in Chambers’ meetings. Members make up subcommittees and are appointed as officers, to whom are delegated specific Chambers’ functions. No pupil has the right to attend a chambers’ meeting nor can he be a member of a subcommittee or an officer. The responsibilities and liabilities of members are set out in detail and do not apply to pupils. In contrast there are special provisions for pupils, to which I have already referred when summarising Mr. O’Dempsey’s submissions. The pupil has a contract with the Chambers, as has been held by this court in Edmonds v Lawson [2000] 1 CR 567, and no doubt the taking of pupils is to the benefit of a set of barristers’ chambers in providing a pool of candidates from whom future members might be recruited, but that does not entail that pupils are members of that set for the purposes of s. 13 nor that an applicant for pupillage is an applicant for membership.

Third, the limiting by the Chambers’ constitution of membership of the Chambers so as to exclude pupils is not contrived or artificial. Not only is it matched by the substantive difference between the rights and duties of pupils and those of tenants of the Chambers but it also accords with the ordinary usage and understanding of “member” and “membership” when applied to a set of barristers’ chambers. It is only in recent times that barristers’ chambers have adopted written constitutions. Even without a constitution I do not think that a pupil would be regarded as a member of the barristers’ chambers where he was doing his pupillage. More importantly that accords with the Code of Conduct of the Bar. The EAT rightly drew attention to para. 803 of the Code in para. 34 of its judgment which prohibits a pupil, so long as he is such, from holding himself out as or becoming a member of chambers. The ET, in describing pupils in the second six months of pupillage as going to court “as representatives of the chambers” cannot be understood as overriding para. 803 of the Code. I do not accept that Mr. O’Dempsey can obtain any real assistance from the provisions of the Code relating to insurance. He referred to para. 404 (d) which provides: “all barristers practising from [the head of chambers’] chambers whether they are members of the chambers or not are entered as members with [the Bar Mutual Indemnity Fund] and have effected insurance in accordance with para. 402 (other than any pupil who is covered under his pupil master’s insurance)”. The reference in parenthesis to a pupil suggests that a pupil might for the purpose of insurance be thought to be a barrister practising from chambers, but the pupil does not take out insurance himself and there is nothing in that special provision to treat the pupil as a member of chambers.

I conclude that as a matter of ordinary language a pupil in a set of barristers’ chambers is not a member of that set and that Mr. Horton in applying for pupillage with the Chambers was not applying for membership of the Chambers. We have not been referred to the position in respect of other trade organisations. I do not doubt that there could be situations analogous to that of pupillage at the Bar, to which the same approach should apply.

In reaching this conclusion, I obtain some, if only limited, comfort from the fact that the 1995 Act contained no provisions comparing to s. 35A of the 1975 Act and s. 26A of the 1976 Act. S. 13 of the 1995 Act is plainly derived from s. 12 of the 1975 Act and s. 11 of the 1976 Act, which use identical language in all material respects, and yet the amendment of the 1975 Act by s. 64(1) Courts and Legal Services Act 1990 and of the 1976 Act by s. 64(2) to include specific provision making unlawful discrimination on the grounds of sex and race in relation to offers of pupillages in barristers’ chambers was not matched by the inclusion of any such provision in the 1995 Act. On the footing that Parliament cannot be assumed to legislate in vain, it is natural to infer that in 1990 Parliament thought that applications for pupillage in barristers’ chambers were not caught by language in the terms of s. 13. However, as s. 35A and s. 26A apply to applications for a tenancy as well as to applications for a pupillage, it is possible that Parliament in 1990 thought that a set of barristers’ chambers was not within the definition of a trade organisation. The EAT’s decision in the present case is the first authoritative decision on that point. On the basis that the decision is correct, it is apparent that the inclusion in s. 35A and s. 26A of applications for a tenancy was unnecessary, as no one could argue that a tenant in a set of barristers’ chambers was not a member of that organisation. However that still leaves the question of whether an applicant for a pupillage comes within the wording such as is found in s. 13 of the 1995 Act, and the enactment of s. 35A and s. 26A might suggest that such wording did not, in the view of Parliament, cover such an applicant. Mr. O’Dempsey said that that enactment may have been no more than for the avoidance of doubt. I agree that no firm conclusion can be reached on this point but my decision is at least consistent with what would appear to have been Parliament’s view that an amendment in 1990 was necessary. If Mr. O’Dempsey is right, it was not necessary and Parliament achieved nothing by s. 35A and s. 26A.

For these reasons I think that the EAT reached the right conclusion. I would give permission to appeal but I would dismiss this appeal.

I have had the advantage of reading in draft the judgments of Peter Gibson LJ and Laddie J. I agree with Peter Gibson LJ that, for the reasons he gives, this appeal should be dismissed.

The single issue on this appeal is whether Mr Horton’s application for a pupillage at 1 Pump Court Chambers (“the Chambers”) was an ‘application for membership’ of a ‘trade organisation’, for the purposes of section 13 of the 1995 Act. The expression ‘trade organisation’ is defined in section 13(4) as being (relevantly) ‘any .… organisation whose members carry on a particular profession .… for the purposes of which the organisation exists’.

The words ‘members’ and ‘membership’ are ordinary English words, and (absent any statutory definition) must be given their natural meaning. In common with many ordinary English words, however, their natural meaning will take its colour from the particular context in which the words used. The particular context in the instant case is that of a ‘trade organisation’ as defined (see above), and the particular trade organisation in question is a set of barristers’ chambers. Giving the words ‘members’ and ‘membership’ their natural meaning in that context must necessarily involve a consideration of the general nature and structure of the profession of barrister and of the particular structure and constitution of the Chambers.

Mr O’Dempsey urges us to apply a purposive approach to construction in the instant case, citing the well-known passage from the speech of Lord Diplock in R. v. National Insurance Commissioner, Ex p. Hudson [1972] AC 944 at 1005D-E. He submits that, adopting such an approach, we should give the words ‘members’, ‘membership’ and ‘trade organisation’ their widest meaning. I have no difficulty in accepting that, given that the social purpose of the 1995 Act (as set out in its long title) is to make it unlawful to discriminate against disabled people in connection with employment or with the provision of goods and services, the question of construction which arises in the instant case is not to be resolved by the application of (to use Lord Diplock’s expression) meticulous linguistic analysis. At the same time, the adoption of a purposive approach to the construction of a statute is not to be equated with a licence to rewrite the statute by (in the instant case) construing ‘members’ as including non-members, and ‘trade organisation’ as including persons who do not ‘carry on’ the profession of barrister.

I turn then, to the issue whether Mr Horton’s application for a pupillage at the Chambers was an ‘application for membership’ of a ‘trade organisation’ for the purposes of section 13.

It is not in issue on this appeal that the Chambers is a ‘trade organisation’ within the definition of that expression in section 13(4). However, Mr O’Dempsey submits that that definition is wide enough to include non-lawyers such as mini-pupils and members of staff: indeed, his submission (as I understand it) is that virtually anyone who has some association with the work of the Chambers is to be regarded for the purposes of the 1995 Act as a ‘member’ of the ‘trade organisation’ constituted by the Chambers. I have no hesitation in rejecting that submission. As pointed out earlier, the definition of the expression ‘trade organisation’ in section 13(4) refers to an organisation ‘whose members carry on’ (in this case) the profession of barrister. That cannot include mini-pupils or members of staff in the Chambers, let alone members of the public who happen to have some connection with the Chambers.

On the question whether a pupil in the Chambers is a member of the Chambers, so that an application for a pupillage in the Chambers is an application for ‘membership’ of the Chambers, the answer must in my judgment be No, for the reasons which Peter Gibson LJ has given. A contrary conclusion would in my judgment run counter both to the generally accepted meaning of membership of Chambers, based upon the structure and rules of the profession, and to the particular constitution of the Chambers.

Mr Horton, the appellant, is a mature student. He applied for pupillage with 1 Pump Court Chambers which is, in effect, the respondent to this appeal. He was offered a place to commence in October 2001. In September 2001 he informed the respondent that he would not be able to take up the pupillage post offered to him because of ill health. He asked for a postponement to October 2002, by which time he hoped to be sufficiently recovered. For reasons which are irrelevant for present purposes, the respondent refused that request. As a result Mr Horton commenced proceedings in the Employment Tribunal claiming disability discrimination contrary to the provisions of s 5(2) and 6(1) of the Disability Discrimination Act 1995 (“the DDA”). There is now no dispute that Mr Horton has a disability and is a disabled person within the meaning of s 1 DDA.

Mr Horton alleges that the refusal of deferral was an unlawful discrimination against him contrary to s. 13 DDA which, in so far as material, reads as follows:

Before the Employment Tribunal the respondent unsuccessfully argued that barristers’ chambers were not trade organizations. That argument is not pursued on this appeal. The other point at issue was whether or not an application for pupillage was an “application for membership” of the relevant trade organization, namely chambers. The Employment Tribunal held unanimously that it was. The Employment Appeal Tribunal held unanimously that it was not. It said:

Mr O’Dempsey, who appears for Mr Horton, argues that whether a pupil is a member of chambers and applying for pupillage is applying for membership is to be assessed by reference to the social objectives underpinning the DDA. It is not for individual chambers or the General Council of the Bar (“the Bar Council”) to define membership so as to limit the scope of the legislation. Mr Napier QC, who appears for the respondent, agrees that, within limits, one is entitled to look at the social purpose of the legislation and he also agrees that no set of chambers can be allowed to draft its constitution so as to avoid the protection afforded by the Act but, he adds, there is no material here to suggest that the respondent or the Bar Council deliberately structured respectively the 1 Pump Court constitution and the Code of Conduct to limit the application of the Act.

It appears to me that the intentions of the respondent and the Bar Council are irrelevant to the issues this court has to decide. The relationship between an individual and a trade organisation has to be assessed objectively. The words “member” and “membership” are used in s 13 to cover all trade organisations. There is no reason to believe that they were used with the particular circumstances of the Bar in mind. The fact that the same words are used in a particular way by the respondents and the Bar Council throws little light on the issue here. They may be using them in the same sense as they are used in the DDA or they may not. The provisions of s 13 apply to the relationship between individuals and all trade organisations, no matter what terminology is used by the latter.

Mr O’Dempsey’s main argument is wide. He says that “membership” should be construed so as to ensure that the social policy behind the DDA extends to as wide a constituency as possible. He says that a person is a member of an organisation if (a) he is selected by it from the general public or a section of it and (b) he has rights and obligations within the organisation which are greater than those expected of a member of the general public, or the section from which they were selected. It covers anyone who has a selected working relationship with that trade organisation. He points out that this is wide enough to cover employees, but that is of little consequence since there are specific statutory provisions covering them.

Applied to the world of barristers, Mr O’Dempsey says that his definition would mean that mini-pupils, pupils, members, door tenants and squatters are members for the purpose of s 13. The only exceptions would be visitors, clients (because they select chambers or a member of chambers, not the other way round) and employees (because they are covered by bespoke legislation).

Mr Napier argues that this cannot be right. He says that s 13 must be construed as a whole. The word “membership” in s 13(1) takes colour from, and must be consistent with, the last part of s 13(4) namely “whose members carry on a particular profession or trade for the purposes of which the organization exists”. Someone who does not carry on the trade or profession in which the organization is involved cannot be a member of it. Applying for membership must be construed in the same way. Mr Napier says that the fallacy of Mr O’Dempsey’s construction is illustrated by the fact that it results in mini-pupils – that is to say young students, sometimes still at school, who come to chambers for work experience lasting a few days or weeks – being treated as members.

I agree with Mr Napier on this issue. It seems to me that s 13(1) must be read consistently with s 13(4). Mr O’Dempsey’s construction would deprive the word “membership” in the former of any meaning. It would have the same effect as if the legislature had replaced the words “admit him to membership of” in s 13(1)(a) with “allow him any form of association with”. In my view the use of the words “membership” and “member” in the section point to a much closer working relationship than Mr O’Dempsey’s construction would require. A mini-pupil, who may know no law and carries on no trade or profession as a barrister and may not even know whether he wants to be a lawyer, cannot be a member of the relevant trade organization, i.e. chambers, and any construction of the statute which comes to the opposite conclusion is flawed.

It seems to me that, consistent with s 13(4), a person can only be a member of a trade organisation if he carries on (or, in the case of an applicant, wishes to carry on) the profession or trade of that organisation. But it involves more than that. It must involve becoming, in a real sense, part of the team, bound by at least some significant parts of the rules of the organisation and benefiting in at least some significant ways from the privileges and benefits enjoyed by close association with others in the organization.

How does this relate to the position of pupils? In these proceedings, evidence was given by Mr Mark Stobbs, Head of the Professional Standards and Legal Services Department of the Bar Council. Among other things he said:

This evidence that a pupil is a barrister who can, subject to restrictions, practice is consistent with paragraph 802 of the Bar’s Code of Conduct:

Mr Napier accepts that, at least in his second six months, a pupil barrister can practice in what he called an “attenuated form”. He says he has a right to practice but not as a “fully qualified barrister”. Mr Napier’s qualifications are accurate but, in my view, beside the point. A pupil is a barrister. He works in chambers. During his second six months he can, and frequently will, appear in court on behalf of clients who will regard him as “their” barrister. He will be paid for this. Whether one refers to this as a conditional right to practice, as Mr Stobbs does, or an attenuated form of practice, as Mr Napier does, it is the supply of legal services as confirmed by the Code of Conduct.

In my view the same analysis applies to the first six months of pupillage. During that period the pupil will be working in chambers and, hopefully, making some contribution to its output. If, during that period or in the second six months, he receives a noting brief it is work which requires legal knowledge and involves a degree of responsibility. He will be paid for this as well (although whether he is paid or not does not determine whether he is supplying legal services – cf pro bono work). In the words of the Code of Conduct, this amounts to providing legal services. It is the same sort of work which is undertaken by members of the Bar in full time practice. Indeed, it is the kind of work which, very occasionally, senior juniors do. In my view a pupil is to be regarded as carrying on the profession of barrister throughout his pupillage, at least for the purposes of the DDA.

In addition to this, such services are provided by the pupil from, and by making use of the support facilities of, chambers. Such briefs as he gets will be provided to him by the clerks. He will use chambers’ telephone, post, computer and library facilities. Sometimes he may have to pay clerk’s fees or a contribution to chambers expenses, even if that is only levied on fees received after his pupillage ends. To the outside world he is part of the chambers team. He will see his pupil-master’s clients in conference, as time passes his views will be canvassed more often, he will see all the clients’ papers, including confidential and privileged ones. He will be insured against professional negligence for work done on behalf of clients under his pupil-master’s insurance policy (see Code of Conduct, paragraph 404.2(d)). It is no doubt partly because he is seen to be part of the chambers team that chambers go to such trouble to select only what they regard as good candidates for pupillage, why paragraph 802 of the Code of Conduct gives his pupil-master the power to prevent him from accepting briefs and that he is insured through his pupil-master. He will be bound by the same rules of confidentiality and good behaviour as bind all the tenants in the set.

In my view, this is enough to make a pupil a member of chambers for the purpose of DDA s 13. The fact that, as Mr Stobbs puts it, the pupil does not have “full” membership of chambers and “equal status” with tenants, does not mean he is not a member. On the contrary, there is no reason why there cannot be different levels of membership of a trade organization. Mr Napier does not argue otherwise. There is no requirement in the DDA that trade organisations be entirely democratic or democratic at all. By the same token, in my view, whether or not a person has the same voting rights as others in the organisation or, indeed, whether he has any voting rights cannot be determinative of whether he is a member of it. There is no reason on policy grounds why the DDA should be construed so as to exclude from protection junior or affiliate members of an organisation. They are likely to be the persons most in need of protection.

Mr O’Dempsey goes further than this and argues that, since pupillage is the gateway through which barristers must pass in order to achieve full practising rights, it is all the more necessary to ensure that the anti-discrimination legislation covers them as much as it covers full members of chambers. I do not think it necessary to pray this in aid. For the reasons set out above, I have come to the conclusion that a pupil is a member of a trade organization for the purpose of s 13 DDA. I would allow the appeal.