'To practise as an advocate in any criminal court, a barrister will need to have undertaken around 120 days of specific advocacy training pre-qualification, plus pupillage. A qualified solicitor can practise [after higher court rights accreditation in the crown court] with as few as 22 hours such training.’ This passage has been quoted many times with approval by the criminal Bar. But what is this ‘120 days of specific advocacy training’? It is, of course, the Bar Professional Training Course (BPTC). The irony is that those who quote Sir Bill believe at the same time that the BPTC is not fit for purpose. Indeed, for them 120 days is grossly too long. Surely, they say, everything a barrister needs to know before pupillage can be taught in half that time if not exclusively during pupillage itself.
The BPTC as we know it
In a few years there is unlikely to be a BPTC as we know it today, after the Bar Standards Board’s (BSB) current round of consultations (see box, p 16). Before its departure, though, it is worth recalling that it is taught according to the recommendations of Derek Wood QC’s working party of barristers who advised the BSB several years ago in detail as to what course content would meet the Bar’s requirements, how it should be delivered and what should be assessed. Wood stood on the shoulders of the old Bar Vocational Course which was devised when the Bar Council was in charge of education. The BSB adopted in full the Wood recommendations, such as staff/student ratios and library facilities – the many prescriptive things which are there to benefit the students but which also makes it expensive. Some, nevertheless, lay the easy blame for costs on rapacious providers (‘those who make money from those with no realistic prospect of a pupillage’, as the Rivlin Report puts it (Criminal justice, advocacy and the Bar, Criminal Justice Reform Group, Chair HH Geoffrey Rivlin QC, March 2015)). The truth is that the students are in a position to make an informed choice as to whether or not to take the course. The Bar Council website contains several reports which set out in detail what a student’s prospects are: how many students, how many pupillages, who barristers are in each specialism in terms of race, gender and educational background, and, crucially, who the readers of this magazine choose to be the new entrants into their chambers. One can even infer socio-economic backgrounds from the fact that 35-40% have total student debts below £10,000; 20% have no student debt at all (Bar Council, Bar Barometer, 2014, p 93).
How to measure success?
The picture is now enhanced by the BSB’s recently published BPTC Key Statistics 2011-2014: An analysis of students over three academic years, which includes the long-awaited ‘success rates’, that is, which providers teach students who get the most pupillages. When ‘validation’ (as it was called) came in some 20 years ago, one advantage was supposed to be location. For example, if your family lived in Manchester you could do the BPTC there, live for free at home, and then apply to chambers in whatever city you wished. In the event, just under half elect to do the course at the three main London providers – BPP, The City Law School and the University of Law – whose students receive correspondingly the largest number of pupillages. According to the BSB report, at the University of Northumbria at Newcastle only seven out of 225 students obtained pupillage during 2011-13 (3%) followed by Cardiff (6%) and University of Law at Birmingham (11%).
One difficulty with the new report, however, is that the total number of pupillages listed for 2011-13 may not include all those who will get it later rather than sooner. One needs also to look at the Bar Council’s and BSB’s own website figures for first-six pupillages: an average of 432 per year from 2009-12, up to 514 for 2012/13 and then 397 for 2013/14 – or 441 pa over the five years. Second-six pupillages over five years consistently average 448. What, then, is the true ‘success rate’? The City Law School, for example, states that it has 170 domestic students who have obtained 75-80 pupillages or a 45% success rate – which is similar to what Kaplan Law School asserted for its students when it was still in business.
About 30% of the BPTC students come from outside the EU but they only make up 3% of pupils. Those who talk up diversity at the Bar by looking at the ethnicity figures for the BPTC and at Call forget how many of the overall total will go back to their country of origin to practise. The overseas cohort appear to be less than popular with some of their fellow students, to the extent that a number of British students have traditionally complained that their education in advocacy is undermined by having to practise witness handling with people whose first language is not English (‘poor communication skills’, as the Rivlin Report put it).
Spoiled for choice
The recent BSB report confirms that under the present system, the Bar is spoiled for choice when it comes to choosing pupils: 13.6% of BPTC students have First Class degrees. However, looking at the group of those who get pupillage before they even start the course – about a third of the total pupillage cohort – half have Firsts and nearly all the rest have 2:1s. Although only 7-8% of all BPTC students receive Outstanding marks, some 40% of this first one-third will be in the Outstanding category: overall, 25% of the Outstandings had First Class degrees. Those on the BPTC who had 2:1s make up 8% of the Outstandings and 40% of the Very Competents. A further one-third of the pupillage cohort is offered places during the recruitment rounds while they are taking the course. Of these, 31% go on to earn Outstanding marks. Although 18% of BPTC students come from the ‘top ten’ universities according to The Sunday Times University Guide, they are awarded the great majority of pupillages. Forty-five per cent of barristers under three years’ Call have been to only one of two universities: Oxford or Cambridge. And so the BSB report confirms that what the Bar wants and gets is people with top degrees and top BPTC marks from the top universities. It is sometimes assumed that those who take the BPTC but do not get pupillage have been failed, but only if one ignores the exit surveys which show that 90% of those who are not offered places in chambers go on to do further study or get a job at a median income of £25,000 pa.
Diversity patterns: beware
There are further patterns which are set out in the report. Although white students make up 40-43% of the BPTC student body during 2011-13, they received 80 to 85% of the Outstanding marks. Twenty-nine to 41% of all students were Asian; they received about 8% of the Outstanding marks. Between 7 and 9% were black; they received 2% of the Outstanding marks. The Very Competent category is roughly divided as 56% white, 27% Asian and 5% black. Overall, 70% of UK-EU students get an Outstanding or Very Competent (and thus surely would have had a prospect of getting a pupillage) compared to 35 to 40% of the overseas students.
In contrast, the results between genders showed that men and women performed equally well; more men than women were Outstanding, more women than men were Very Competent. Where there is disparity in ethnicity, no conclusions should be drawn before there is a good deal of careful research.
Designing a replacement
All these figures need to be kept in mind for anyone who wants to design a replacement BPTC. That means the Bar, through the Inns and the Council of the Inns of Court (COIC), which lays plans for a course with two parts and two purposes. Both money and numbers are uppermost in people’s minds. The current BSB aptitude test – which has been criticised for not failing enough people – has been put to one side for evaluation. Numbers have not been capped for 20 years because that has been held to be anti-competitive, and the Legal Services Board is against capping. At the moment 3,000 people undeterred by the price tag on the course apply to take it. About half are allowed in. What COIC wants is for all of those, plus the unquantified numbers who are deterred by the cost, to be able to take, as part 1, an online legal knowledge test (with no face-to-face training) at minimal cost, so that if they fail, it will be quick and inexpensive. That is the first purpose, to allow anyone who thought of coming to the Bar to have a ‘go’. The second purpose requires most of these people to fail, because the point is only to allow through a part 2 cohort which is much smaller than the present BPTC. The Criminal Bar Association looks forward to the Bar coming from ‘the widest possible pool of talent from all parts of society’ but a legal knowledge test is not the same as social engineering. That does not happen on its own. Who is likely to succeed in part 1? The experience of the BPTC suggests that the odds will be in favour of those who have had an excellent legal education and who can prove it with their top degrees from certain universities. Will that in the event produce ‘the the widest possible pool of talent from all parts of society’?
For those who wish to mandate what the future course will be, it is important to consider who we want to be taking it and who will be in the pool of future pupils.
Contributor David Wurtzel, Counsel Editorial Board
Future Bar Training: BSB’s next steps
Dr Simon Thornton-Wood of the Bar Standards Board provides an update on the regulator’s plans for the future structure of Bar training
The BSB consultation on qualifying as a barrister ran from July through October (Future Bar Training). We sought views on the current system, set out our thoughts on the role of regulation, and asked questions about possible alternatives for the academic and vocational stages of the traditional system, and pupillage. We also asked about the use of data to inform our understanding of the training market.
Having published a full analysis of the responses to the consultation at the beginning of February, our next step will be to propose a number of options for the future structure of training. We will explain how we see each option supporting our objectives of sustaining high standards in a changing market, focusing on the essential requirements for practice, and ensuring accessibility to people from a diversity of backgrounds. We will set out these initial options in the near future.
We aim to settle on a preferred option this autumn, and we will consult on a detailed proposal at that time. In the meantime, we expect to hold detailed discussions with those involved, to ensure that we have a good understanding of the implications of each option: for the self-employed and employed Bar and consumers of their services, for training organisations, and for the academic community.
In autumn 2015, we published the Professional Statement, setting out the knowledge, skills and attributes that we expect of barristers from the first day of authorisation to practise. We will shortly publish a consultation on the Threshold Standards that will underpin the Professional Statement, helping training organisations to design their courses to meet the needs of an evolving profession.
The BPTC Key Statistics 2011-2014 report demonstrated our commitment to make more information available on training, and we will publish a revised edition in the coming months to include those qualifying in 2015. Another important development is the change to our centralised examinations, which will be sat by students from 2017; we will be making further announcements on these changes shortly.