Bar course shake-up

David Wurtzel asks Derek Wood CBE QC the million dollar question: will the Inns re-enter the law school market and offer a cheaper and ‘radically innovative’ BPTC?

Derek Wood CBE QC is the first chairman of the Inns of Court College of Advocacy (ICCA), an organisation he did much to bring into being. The attitude towards the training of barristers – both as students and throughout their practice – could not be more different from the situation when Derek was Called.

When he studied for the Bar in the early 1960s, the right of advocacy began with pupillage, even though he had received no training in advocacy and it was not necessary to attend any classes before sitting the exams. ‘On the first or second day of my pupillage I found myself in the Bow Street Magistrates’ Court in front of the Chief Magistrate,’ on a road traffic case. ‘Advocacy was very hit and miss’ then, he recalled, but fortunately his pupil master was Maurice (later Mr Justice) Drake, ‘a very fine advocate’ with a big advocacy practice. Once in practice, Derek specialised in landlord and tenant, real property and building and construction work in what is now Falcon Court Chambers.

In 1990 he became Principal of St Hugh’s College, Oxford and remained there for 11 years while maintaining a part-time practice. He calls being Principal ‘a great job’. Rather than being a ‘hired gun’, he found himself working with colleagues, reaching collective decisions and being guided by others and offering guidance himself. Back in chambers full time in 2002, he went on to become Treasurer of Middle Temple and later Director of Middle Temple Advocacy.

In the beginning: BVC to BPTC

It was during his tenure at St Hugh’s in the 1990s that the Bar accepted that advocacy was a skill that could be taught and learned. The skills-based Bar Vocational Course (BVC) began. After that the Inns started coaching their pupils; the Hampel method was adopted; and Tim Dutton QC founded the Keble Advanced Advocacy Course and the ICCA’s predecessor, the Advocacy Training Council.

There was a substantial review of the BVC in 2000 by Sir Patrick Elias. In November 2007 Lord Neuberger’s report on Entry to the Bar complained that the pass level was too high and that too many Very Competent grades were awarded to those who were ‘no better than barely competent’. It recommended that there should be centrally set assessments. By then, the Bar Standards Board (BSB) had assumed the duty to regulate education and they had commissioned Derek to report on what a Bar training course should consist of. He set up a committee of practitioners, consulted extensively, and spent several months devising the BPTC including the length of the course, the facilities required and the method of advocacy training. The BSB adopted his recommendations in their entirety and the course has been taught accordingly by the providers ever since.

I put it to Derek that the Bar has rarely said a good word about the BPTC. In 2014 a team of consultants was told that it was a ‘flawed approach to initial training’. The dilemma is best summed up by the criminal Bar. The Rivlin Report it instigated concluded that the BPTC was unfit and indicated that teaching would be improved if it were handed over to practitioners. At the same time, it cited Sir Bill Jeffrey’s independent report on advocacy – a report which Derek supports – which said that barristers are in a better position than solicitors because they undergo 120 days of advocacy training and pupillage. By 120 days Sir Bill meant the BPTC, although the Inns and Circuits in addition provide compulsory training for pupils and new practitioners. The BSB did institute directly set assessments, in procedure and evidence. It is an axiom of higher education that it is more challenging to prepare students for an exam when the teachers do not know what is going to be on it. The supposedly unacceptably high pass rate has now become the supposedly unacceptably high failure rate.

‘I don’t think it did go wrong,’ Derek replied. ‘I don’t agree with those condemnations. I think the syllabus of the BPTC has stood the test of time. It was important that Bar students should have some elementary education in advocacy by the Hampel method and I stand by that.’ There is an ‘element of arrogance’ amongst trainers in the Inns and on the Circuits, that ‘no one can teach advocacy like we can’. It is ‘the first and absolutely indispensable building block for training in pupillage and training as a new practitioner. I see it as a seamless continuum’.

Will the Inns re-enter the market?

More recently the BSB decided that the ‘single pathway’ BPTC should be replaced by a choice in ‘pathways’ to qualify for the Bar. Derek was a driving force in devising the proposal of a course with two parts, which the BSB has accepted as one of those pathways, and which is now being turned into a detailed proposal. A project manager has been hired. In November that detailed proposal will be presented to the four Inns. They will decide whether or not to continue with the feasibility study. (‘That’s the first set of traffic lights,’ he said.)

The BSB’s guiding principles are accessibility, affordability, flexibility and achieving high standards. Derek is sure that the ICCA proposal fits all four. Derek’s fear is that the present cost of the BPTC puts people off from less advantaged backgrounds so that the Bar ‘increasingly becomes a profession of the haves’. At the moment this is a presumption; there has been no survey of the socio-economic background of the Bar or of students. The ‘entry level’ Bar is already gender equal and has an ethnic make-up which matches the nation at large and is better than the profile of university students.

Form and function

If the Inns give the go-ahead for the project, Part 1 will be an online course preparing students for the directly set BSB assessment papers in criminal procedure and sentencing and civil procedure and remedies. If things do proceed, tutorial staff will be engaged to devise online-only training materials. Anyone is free to take the course, anywhere in the world, and at any stage in their education. The charge to them will be either £500 or £1,000, and those who pass the BSB assessments will be given a College certificate. The BSB assessments themselves will not be conducted on-line.

In contrast, students will have to apply for part 2, which would be a 20-week course of face to face training in oral and written advocacy skills and which will be delivered in the Inns, whose facilities should be ready for a 2020 start. Two courses a year are planned, starting with an intake of 30 students each and perhaps rising to 120 students, with tuition fee of about £10,000. ‘We will be very careful about our admissions process,’ Derek said. He has investigated thoroughly what has happened in the civil service and elsewhere to achieve a diverse intake. It is a system of ‘flags’: the admission standards remain high but ‘what we are interested in’ is seeing ‘what are the stepping stones which led this individual to that standard of achievement’. ‘If you’ve come from a more difficult background that’s another factor we can take into account as to whether to give you a place or not.’ Those admitted to part 2 will be admitted on a conditional basis that they pass part 1 but those who pass part 1 will not necessarily get into part 2.

The course will be taught by professional staff. Derek acknowledges that there are people who think that practitioners should teach it, ‘that they are superior advocacy trainers to anyone who is paid a salary’. Practitioners and judges may well come and give supplementary training, but ‘the students expect their lecturer to turn up and not be unavailable because the jury is out’. In terms of course materials, everything will have to be created from scratch. As a result, the start-up costs may be £5-£6m, which would have to be met by the Inns. ‘We would aim to have a very high standard of delivery,’ he said and he envisages the course expanding both in numbers and locations.

Those who fail part 1 will still be free to study at another provider. The existence of other providers (whom Derek hopes will also adopt this two-part course) means that the total number of aspiring students may not necessarily change. And chambers remain little autonomous units when choosing pupils. Some 75% of the young Bar went to a Russell Group university (45% to Oxbridge alone). However, Derek pointed out, some chambers no longer ask applicants where they went to university while some chambers will only interview an Oxbridge First.

The ICCA training spark

What fuels Derek’s optimism is all the other work which the ICCA has done and is planning to do. COIC has given them a grant of £530,000 and the ICCA has in turn made grants, eg to international training visits. He emphasised that it is not the ICCA’s intention to take over the training which is ably delivered by the Inns and Circuits. Instead it is there to develop ideas of more advanced areas of advocacy and to deliver more specialised, bespoke training in that area. The Inns and Circuits are free to use the ICCA’s materials if they so wish.

The biggest immediate job is to assist with the massive vulnerable witness training course which is being rolled out to perhaps up to 16,000 barristers and solicitors. It took three years to develop the training and materials (available through the ICCA website) and to train the facilitators and trainers. It has been rolling out this year. The 2016-17 Annual Report states that the ICCA ‘will be responsible for the quality assurance of all Bar-related training. There is a small group of QA assessors who will undertake this work on behalf of the ICCA’ although the monitoring has not yet begun. ‘We are happy to be regulated but we are not a regulator,’ Derek pointed out. For example, he expresses no view on whether the BSB should introduce a form of ticketing for certain types of work.

In October 2016 there was a whole day conference on Vulnerability and Power with over a dozen workshops. Although there was a note taker in each of them, a summary of what took place was not in the end circulated to delegates; ‘the task of putting it all together was too great’. This July was a seminar on dealing with expert witnesses, which was ‘highly intensive and highly advanced’. A training day on pleas of mitigation is coming up. ‘I think the view is taken now that when you are doing advanced work, you get more out of delivering more training days with smaller numbers than a large plenary session with lots of numbers.’ Even before the ICCA was formed, Derek had helped to produce a training film on interpreters in court and a good deal of work was done about training in ethics. A committee headed by Paul Stanley QC will carry this forward, the immediate aim being to settle a suite of high quality training materials with teaching notes to assist the Inns and the Circuits in delivery. The ICCA has already set up and disseminated materials for youth court advocacy, an area of particular concern.

‘It’s all bubbling away,’ Derek summed it up at the end. He is proud to be doing it pro bono: ‘This is such an interesting way of giving back; I would like to leave this as something I could do.’

This article was updated on 11 January 2018.

Author details: 
David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.