One strand of this programme is concerned with pupillage. Here, while accepting that pupillage is “a vital preparation for practise at the Bar”, and that it expects “the essential characteristics of pupillage to continue”, the BSB indicates that it will become “less prescriptive and more flexible”. What this will mean in practice is uncertain.
Those of us who have lived through successive waves of increasing prescription (pupillage checklists; awards; monitoring; supervisor training) and who might wonder why we may now be preparing to reverse course, will be refreshed by a short reminder of the history of pupillage. In compiling this crash course, I am grateful to the BSB Pupillage Review Working Group, chaired by Derek Wood CBE QC, for its report; to John Hamilton Baker for his The Oxford History of the Laws of England, Vol 6: 1483-1558; to Richard Abel for his The Legal Profession in England and Wales; to the Archivist of the Inner Temple, Celia Pilkington; and to the Librarian of Lincoln’s Inn, Guy Holborn.
Let me reverse through history, starting with the present day. Regulation of pupillage has a comparatively recent history. The Bar has prohibited pupils from taking briefs during their first six months only from 1965. The completion of a period of 12 months’ pupillage with a qualified pupil supervisor has been a compulsory requirement for practice at the Bar only since 1959.
Payment for pupillage has seen many changes. Since 2003, it has been mandatory for pupillages to be funded by a minimum prescribed amount. Prior to 1975, pupilmasters (for they were invariably that) had been entitled to charge their pupils 100 guineas for their pupillage year (and many did so). Some decades before that, when the customary period of training was two years, the corresponding fee was 200 guineas.
Although pupillage was not a mandatory requirement prior to 1959, many Bar students underwent a period of training with a senior barrister. From 1847, the custom was for students to spend a first year with a conveyancer or equity draftsman; then six months each with a special pleader or common law barrister and a solicitor; and finally another half-year with a barrister.
In 1863, the four Inns made Consolidated Regulations which regulated the admission of students, the keeping of terms, the conditions of Call to the Bar (without which there were no rights of audience that the judges would recognise), and the granting of practising certificates. The passing of formal written examinations in law (Bar Finals) became a requirement of Call to the Bar.
Before this, and as far back at least as the Tudor period, although there was no formal pupillage structure as such, the Inns published collections of rules and orders which appear (none have survived intact, regrettably) to have required participation in learning exercises for an appropriate period. There were three such exercises: moots, “the statutes” and “the writ”. It may be doubted what value these various exercises were to the aspiring practitioner. The moots, for example, involved elementary pleading exercises, which had to be recited from memory. The Black Books of Lincoln’s Inn record that the judges of one competition in 1557 directed that the submissions should not contain “above two points argumentable”, disclosing perhaps an irritation with prolixity with which most of us are familiar. Infractions or failures were punishable by fines.
Some fortunate students did share chambers in the Inns of Court with their seniors. In 1486, for example, Humphrey Starkey of the Inner Temple required his son to be placed under the “oversight, guiding and rule” of Thomas Marow of the same Inn. Viscountess Lisle’s son went to Lincoln’s Inn in 1535, where Master Sulyard regarded him as his “pupil”, and wrote reports on his progress. But such early mentoring owed more to patronage than to any formal system of apprenticeship.
We have come a long way since then, although the pace of reform and regulation has quickened in the last few decades. While barristers tend to be hostile to change, it is worth recalling some of the complaints about pupillage in the 1970s, before regulation took hold: the Inns exercised virtually no supervision over the selection of pupilmasters; the experience tended to be very narrow, because the pupil was apprenticed to a single master; masters sometimes exploited pupils, using pleadings and papers drafted by them without making any changes, and taking on as many as four pupils each at a time; and young barristers complained that pupilmasters were too busy to offer meaningful guidance.
While some changes may (perhaps) encourage more pupillages to be offered, it is important that the BSB retains those of the current restrictions which encourage good practice in pupillage, in its aim to become “less prescriptive and more flexible”.
Contributor Guy Fetherstonhaugh QC
Chairman of the Bar Council Education and Training Committee, and once a pupil