Ever since the Bar Council first required that pupillages must be funded in 2003, the number of pupillages available has steadily declined, meaning that competition for pupillage is more intense than ever before.
When every candidate for pupillage already has two or more mini-pupillages on his CV, and only about one in six are successful in obtaining a pupillage, aspiring pupils have to ensure that their applications stand out from the competition’s. What better way to do this than to undertake an internship at a barristers’ chambers? Someone who has just spent three to six months undergoing training similar to that which a first six pupil receives will be much more attractive to pupillage providers, and former interns speak highly of their rich and fulfilling experiences.
Unpaid internships are offered by chambers which have calculated that the cost of a funded pupillage is too much to bear, but which nevertheless wish to provide some measure of assistance to those seeking a career at the Bar, an increasingly difficult profession to join. In August on Lawyer 2B, Adam Fellows criticised the lack of remuneration on the grounds that it does not promote diversity at the Bar, exploits interns and may even contravene the National Minimum Wage Act. He is wrong.
Internships do not attract the minimum wage because interns are not workers but volunteers: they are not expected to do any work or perform any service beyond that which is necessary to train and educate them, they are not required to work if they do not want to (and chambers are not required to give them work), and they do not work for reward. When the Court of Appeal held in Edmonds v Lawson  QB 501 that pupils are not workers who must be paid the minimum wage (the obligation today is not statutory but is in the Bar Code of Conduct), Lord Bingham LCJ said “we can find no trace of any duty or obligation binding on the pupil to do anything not conducive to the pupil’s own training and development,” and accordingly ruled that pupils are not workers within the Act. The facts on which that case was decided also apply to interns. The important points here are that there is no contract of service or apprenticeship, and that the internships exist not so that chambers can benefit from free work but for the benefit of the interns themselves. As the House of Commons Library briefing paper on the minimum wage concludes, “the sponsor will often not be entering into the arrangement for the purpose of being provided with services, rather to assist the internee in his/her educational and personal development.” As such, interns “are unlikely to be considered as workers under the National Minimum Wage Act.”
Fellows cites Keri Hudson v TPG Web Publishing Ltd in support of his argument that unpaid internships are unlawful (Hudson was awarded £1,025 for work done in her internship), but omitted to mention that Hudson was not just learning how to do a job, but was actually in charge of managing six other interns, hiring interns, and doing work which somebody else would be paid to do if she had not been doing it — much more than merely being educated and trained. Hudson was also told that she would be paid for her work, an offer TPG reneged on, so she also had an expectation of reward.
The contrast with the sort of internships offered by 4KBW and 9KBW could not be more stark. Moreover, the International Bar Association — of which the Bar Council is a member — offers unpaid internships of its own, in which far more onerous duties are expected of their interns than of the interns in either chambers. Their interns also work set hours. Perhaps Fellows would care to explain to the Bar Council why the internships they apparently endorse are unlawful and unethical?
Fellows also mentions the Common Best Practice Code for High-Quality Internships (authored by the Trades Union Congress and endorsed by the Bar Council and the Department for Business, Innovation and Skills), “which [says Fellows] sets out the commitment to remuneration.” Except that it does not, anywhere. What it does set out is that interns who are workers must be paid the minimum wage, and that interns who are volunteers are not workers and are not paid. It then sets out six “principles of best practice,” none of which require remuneration (but all of which 9KBW complies with). It does however suggest that interns should be paid their reasonable expenses, such as travel, which 9KBW is committed to doing.
The diversity argument — that internships can only be undertaken by those without debt, or whose families can fund them — applies with much greater force to the cost of doing the BPTC (some BPTC students have to fund their studies with part-time jobs), and that is where the battle lines should be drawn for that particular issue. However the problem is mitigated by the facts that the repayment of student loans does not begin until the ex-student earns £21,000 per year, and our internships are advertised to everyone and awarded strictly on merit.
Fellows argues that mini-pupillages are a better way for aspiring barristers to gain experience, and commends the Pegasus Access Scheme’s two- to five-day mini-pupillages as an alternative to internships. But they are a poor substitute. Mini-pupillages are not hard to get and so everyone does them, and they simply do not provide anywhere near the level of training and experience an internship does. The TUC’s Code recommends that at the end of an internship the intern is given “a certificate/reference letter detailing the work they have undertaken, the skills and experience acquired, and the content of the formal performance review conducted at the end of the internship.”
Needless to say, the feedback provided after a mini-pupillage (if any) would be paltry, compared to the accolades which can be earned during a three-month internship. In the fight for pupillage, the intern has a real edge.
Chambers of A. M. Azhar, 9 King’s Bench Walk