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The disparity between the number of students completing the BPTC and the pupillage places on offer means many would-be barristers are in career limbo. Christian Metcalfe reports
For many years getting pupillage has been increasingly tough (to say nothing of the further challenge of securing tenancy). The oversupply of young barristers has grown every year – there were at least several armfuls of hopefuls for every one of the 446 pupillages up for grabs last year and only one in six UK-national students who complete the Bar Professional Training Course (BPTC) are successful at gaining pupillage at the Bar of England and Wales.
Despite the overwhelming statistical conundrum faced by candidates and the dire warnings pronounced repeatedly by the bar, there are an increasing number of students lining up to hand over around £16,000 each for the privilege of papering their bedroom walls with rejection letters. The Bar Council and Bar Standards Board’s (BSB) ‘Bar Barometer’ shows that for 2010-11, 3,100 people applied for the BPTC, up from 2,657 the year before.
So why the huge disparity? Is this just the employment equivalent of the South Sea Bubble?
Had the previous monopoly of the Inns of Court School of Law (ICSL) still been in existence, the problem of controlling numbers may not have been such a difficulty, but that is no longer the case, and any attempt to directly control numbers could well fall foul of the charge of anticompetitive or restrictive practices.
In essence, the current system is one where as long as a student meets certain criteria
(a law degree or its equivalent and £16,000), then they can probably find a place on a bar course somewhere. And it is difficult to stop course providers from taking on students as long as their number of allocated places is not exceeded and they have the resources to provide the course to the student.
That said, the recently published BSB monitoring reports noted several instances where providers have made concerted efforts to change the profile of cohorts and the
so-called ‘weak tail’ of students by reducing the numbers of students with 2:2 degrees. For example, City Law School has moved from 40 per cent of students having 2:2s in 2008-09 to 28 per cent in 2010-11.
It may be that a significant minority of students do not want to practise at the bar in any event. Indeed, the statistics show a sizeable number of international students (30 per cent in 2009-10) who come here to qualify then return to their home jurisdictions to practise – such students are certainly attracted to the fact that the call to the bar is dependent on passing the BPTC rather than pupillage.
At BPP Law School, for example, more than a third of the 2011-12 cohort indicated an interest in practising outside of the UK, including nearly 20 per cent looking to practise in Malaysia and Singapore, nearly 20 per cent looking across the Caribbean, 9 per cent in the Indian sub-continent and 9 per cent in Mauritius.
Apart from international students it is difficult to gauge students’ motivation for doing such a professional skills-based course other than to become a barrister.
James Wakefield, bar course director at Kaplan Law School, says: “If someone said
at interview that they didn’t want to get a pupillage then they wouldn’t get a place. This course is designed to get you into the courts. While there are side benefits of the course, such as increased confidence, this isn’t a finishing school for graduate life. You can do that cheaper, better and by having more fun elsewhere.”
Wakefield says that students need to be absolutely honest with themselves and realise that the minimum to enter the competition for pupillage is a 2:1 degree, lots of evidence of public speaking, debates and mooting, and at least three work experience placements – and that is just to get off the starting block.
“Then it’s all about what your attitude is to risk – can you afford the risk? The rule of thumb is, if in doubt, don’t,” he adds. “For many people the question has to be, ‘If I didn’t try would I ever forgive myself?’ It’s got to be at that level. I do think there’s a significant number of people who go into it too lightly.”
Anthony Dursi, recruitment and outreach manager at Inner Temple, notes: “It isn’t just about the numbers, though, the breakdown of the numbers is important as well. We need to look at who we’re attracting as a profession – we find talent wherever that may be from, but we need to make sure we provide balance so we don’t put off students who would get a pupillage.”
Peter Crisp, dean of BPP Law School, also raises the issue of giving balanced information to students before they part with more than £16,000. “We were visiting Leeds before Christmas and the students were telling us that we were being too negative about the bar and putting people off. But we’re trying to be neutral and present the facts so they can make an informed decision.”
That view is echoed in the monitoring report for BBP Law School in Leeds, where the panel noted that students, “felt that they had been very adequately warned of the difficulties of entering their chosen profession, by the Inns as well as by the provider, and in spite of the fact that statistically few were likely to gain pupillage, they were resolved to take up the challenge, had chosen to dedicate themselves to the BPTC course, and did not have a ‘plan B’ for the time being”.
Dursi is keen to point out that the Inns have done a massive amount of work to reach out to people, particularly from ‘non-typical’ bar backgrounds, where even acknowledging they want to come to the bar is a massive step. He notes that through application packs, outreach activities such as the Pathways to Law programme, school visits and online information, the Inns make prospective barristers very well-informed not only about the statistics but also the opportunities and scholarships (in 2012, Inner Temple alone intends to make awards totalling £1.36m).
The progress the bar is making in terms of social and economic mobility can be seen in the Barometer statistics comparing the last cohort of pupils in 2009-10 with 2008-09’s figures. In 2009-10 only 23 per cent of pupils came from Oxbridge compared with 32 per cent the year before; only 46 per cent of 2009-10 pupils came from Russell Group universities compared with 65 per cent previously; only 7 per cent of pupils’ parents were lawyers compared with 13 per cent previously; and 55 per cent of pupils came from a professional background compared with 75 per cent previously.
However, there is clearly much more that needs to be achieved and the desire to control numbers has to be balanced against the need for increased access to the bar – the dilemma is that if there were a mechanism for reducing numbers wholesale then there is the potential that this could impact on diversity.
So what is being done? The professional bodies have spent a great deal of time focusing on raising standards and toughening up the bar programme, with the new BPTC replacing the Bar Vocational Course in 2010. They have also raised the pass mark in skills subjects from 50 to 60 per cent, only allowing two attempts to pass and no in-course reassessment.
This has now been followed by the Bar Aptitude Test in a bid to lower the proportion of students with a propensity to fail and ensure those with a low aptitude do not slow down classes. Piloted between July 2009 and September 2011, students who have taken the test have been far from complimentary, saying that although they understand the need for such a test, as it currently stands it is not fit for purpose.
However, it is undoubtedly here to stay, even if its form is further refined, as the BSB believes the outcome of the test shows a good correlation with the outcome of the BPTC.
In particular, the pilot found that the test should not cause discrimination, which was initially feared following a report by Dr Chris Dewberry of Birkbeck College, which claimed a reduction in diversity would occur due to students from privileged backgrounds often performing better on aptitude tests.
Noting that the initial view seems to be that the test will not have a negative effect on social mobility, Dursi says: “Anything we can do to ensure that students do not spend that kind of money without a realistic prospect of passing has to be welcomed.”
On the subject of testing, BSB chair Baroness Deech says that she is concerned that some students’ command of English has been so poor that it has impeded other students’ performances on the course.
“You don’t go to ballet school if you’ve got two left feet. The essential tool of a barrister is language, therefore command of the English language is sorely needed,” she says.
Kaplan pre-empted the BSB by introducing its own entrance test in 2010. Prospective students must complete a piece of oral advocacy under examination conditions, a piece of written work and undergo an interview.
Wakefield says: “Our test is doing a different thing. The BSB tests are checking minimum competence in a computer environment – testing reasoning and analytical abilities. Our test is not trying to find a minimum but trying to find the best.
“I don’t think our test is incredibly difficult I think it’s quite straightforward. But it does help us to work out of that bright group who isn’t as good as they claim to be.
“We did it for two reasons, for us to be able to see and test candidates, but we also wanted candidates to test themselves. Sometimes they may find that it is not a route they want to go down after all.
“It’s hideously time-consuming and therefore expensive, but we wanted to ensure that everyone we take has a fighting chance and we wanted to test that.”
With a success rate of 46 per cent of students obtaining pupillage for 2010-11, the approach seems to have paid off – the national average is 25 per cent.
However, as Wakefield points out: “That still means 54 per cent haven’t. And I’m not happy about that.”
So what more could be done? In terms of the future, a lot depends on the outcome of
the Legal Education and Training Review (LETR), which is a comprehensive review by the representative bodies of the bar, solicitors and legal executives looking at the education and training of lawyers across England and Wales. The review focuses not only on numbers but also on future changes in legal practice, but the panel is not due to report until the winter (see Feature, page 20, for more details).
Challenging government moves on public funding may also help, as it is suspected there will be a further dip in pupillages this year as practitioners at family and criminal chambers suffer from legal aid cuts.
Whether that reduction will be made up for by the thrusting commercial bar or more opportunities in the employed bar remains to be seen, and depends very much on the economic situation.
More funding for pupillages may seem the obvious solution but is difficult because chambers are commercial enterprises subject to the inexorable laws of supply and demand. There are not huge swathes of legal work being left undone because of a lack of people-power and chambers are not going to take on people if there is no work for them, and nor should they.
That said, pupils are not just about the money (they must be paid a minimum of £12,000, although most get more than this) but are also about the huge amount of time and effort that is put into training them by their pupil supervisors. In reality, chambers must look on pupils as an investment and anticipate their future need for junior barristers – although on current showing, the future looks bleak.
“People are talking about various ways of increasing pupillages,” Deech says. “But there’s no point in increasing numbers of pupillages if there isn’t the work for them to do in their first years – it is market forces.
“The quality of bar students is outstanding and absolutely wonderful and the country could use these people, but due to cuts in legal aid and the economic recession it’s very difficult. The bar is not alone in this – look at the numbers of media graduates trying to get into the BBC. It’s a national problem. Law has its particular features but it’s not exceptional.”
A return to unfunded pupillages is dismissed by Deech, who says: “We don’t want to go down that road as that would in itself close off a route for many. It would be a step back in terms of social mobility.”
The message is pretty clear: if you like the odds in your favour then hunting for a pupillage is not the sport for you. Although to be fair, perhaps the bar would not then be for you either.