Consultation on deferral of call to the Bar - UKCLE response

In July 2006 the Bar Standards Board (BSB) issued a consultation paper on deferral of call to the Bar – the UKCLE response is given below.

The consultation paper identified a number of policy and regulatory issues affecting entry to the profession that might be influenced by the decision to defer call, including questions as to its impact on recruitment to and diversity in the profession. The paper also recognised that deferred call had the potential to change the relationship between the Bar Vocational Course and the degree of barrister. If a student is no longer entitled to be called to the Bar on completion of the vocational stage, should a new qualification be awarded by the BSB or the Inns at that point, in addition to any award given by the provider institution?

The Bar Standards Board final report on deferral of call was released in August 2007.

UKCLE sets out below its brief responses to the questions posed in the consultation.

1. Is it in the public interest to defer call to the Bar until after completion of pupillage, and what evidence is there which is relevant in answering this question?
    
   The key issues for consideration are whether deferral of call would have a significantly detrimental effect on diversity at and access to the Bar, and whether in fact deferral of call is a proportionate response to the regulatory risks involved. We do not consider it appropriate for UKCLE to take a clear position on these questions. We would however make the following observations:
    
   a) There is an obvious prima facie argument that it is in the public interest to bring qualification to the Bar in line with that (formally) of solicitors and other professions, where the occupational title is not conferred until completion of the full training process.
    
   b) However, there is also a range of potentially compelling countervailing arguments:
    
   (i) It could be argued that, in the absence of any meaningful evidence of abuse this may be an unnecessarily onerous adjustment. There is, so far as we are aware, no evidence that “barristers” who have merely completed the BVC are passing themselves off as qualified practitioners; neither is there evidence that the public is concerned by the present position, if they are in fact even aware of it. There may be a question whether expansion of direct access arrangements increases that risk, but we are not in a position to judge this.
    
   (ii) The diversity issues are complex. The cost of the BVC is high and the risk of not obtaining pupillage is also relatively high – and may be higher for non-traditional students. The number of BVC places available cannot be pegged to demand from the profession. There continues therefore to be a relatively significant oversupply of ‘graduands’ from the BVC who do not proceed into traditional pupillage arrangements. The introduction of alternative pupillages ameliorates some of this problem, but not all of it. We believe, albeit on an anecdotal basis, that the award of the title barrister provides BVC students with a more marketable commodity than a BVC diploma per se when seeking alternative or interim employment. Removing the title may restrict the wider employability of BVC graduands and this in turn might influence some students away from taking the risk of commencing the BVC, particularly if they already perceive themselves to be potentially disadvantaged in the (legal) employment market. More importantly, as has been recognised by the creation of the working party headed by Lord Justice Neuberger, diversity is a major issue for the Bar, and it would seem essential to address deferral of call as a part of that wider debate.
    
   (iii) There may well be a variety of risks from deferral of call in respect of jurisdictions such as Malaysia and Gibraltar who use the BVC as a passport into their own legal profession. There could thus be an impact on international recruitment to the BVC itself, though we are not in a position to quantify this. We are also aware that a number of university law schools are concerned that such a move may have an impact on the sensitive relationships that exist between the local legal professions and higher education institutions in England and Wales, with possibly significant consequences for recruitment to undergraduate and postgraduate law courses more generally.
    
   c) An underlying problem for this consultation is the apparent absence of any substantial evidence on which to assess the likely quantitative effects of such a change of policy. This makes it difficult for anyone, including the Bar Standards Board, to determine the proportionality of its response on any grounds other than the intuitive. The Board should consider commissioning research to assess, so far as possible, the consequences of such a change.
2. If call to the Bar is to be deferred, what should be the future status of pupils? In particular: (a) should pupils be temporarily called to the Bar for the second six months of pupillage? (b) alternatively, should a new title of ‘pupil barrister’ or ‘trainee barrister’ be created – and, if so, for how long should it be available?
    
   As regards (a), temporary call seems a very pragmatic and less than ideal solution. While the scope of the regulatory problem is narrower than the practising/non-practising distinction, the Board must still ensure that consumers are able to distinguish temporary from final call, and must presumably have appropriate mechanisms for clearly determining how and when temporary call will end, and for dealing with extensions and suspensions of time, and other exceptional cases.
    
   A title such as ‘trainee barrister’ has the advantage of clarity and is clearly comparable to the practice in a number of other professions, including solicitors and accountants. As regards the duration of the title, practice among professions is highly varied; some professions, such as architecture, are quite relaxed about the time it takes to qualify; others are more restrictive. Access arguments would tend to favour a more liberal regime, which might be safeguarded by relatively stringent monitoring requirements. The larger underlying question which this begs is surely how one determines the point at which a trainee can by adjudged competent to practice, and in this regard the Bar’s approach probably remains insufficiently defined and documented by contrast with most current system of professional education in the UK. If call to the Bar is to be deferred, should a new qualification be awarded by the Bar Standards Board or by the Inns on successful completion of the Bar Vocational Course – and, if so, what should it be?
    
   If call is to be deferred, anything more than the diploma currently awarded by the BVC provider seems unnecessary. Any additional qualification would be potentially confusing (see para 45 of consultation).
3. If call to the Bar is to be deferred, are there any other changes to the rules and arrangements governing entry to the profession which it is essential to make at the same time?
    
   We would welcome consideration of recognition of overseas experience in some form as referred to in paragraphs 51 to 55 of the consultation paper. This is however subject to wider concerns about diversity in and access to the Bar and the number of pupillages and tenancies available, as noted under question 1. In addition, this would clearly have implications for the current provisions for “alternative pupillages”.
4. If call to the Bar is to be deferred and any other associated changes made, what considerations should influence the timetable for implementing these changes?
    
   If call is to be deferred, then it is important that all those potentially affected are given adequate time to react to the decision and make appropriate transitional arrangements. We refer here particularly to those jurisdictions whose current training regulations allow a citizen of that jurisdiction to be admitted in that country if they have attained the title of barrister in England and Wales. Clear guidance and adequate transitional provisions must be given to all affected, at all stages of education, including secondary school students, and the relevant jurisdictions. The impact of reopening consultations on this issue on such bodies and the advice they have been able to give should, in particular, be considered in assessing the appropriateness of introducing any such changes in September 2008 as planned.

Last Modified: 4 June 2010