Back to the future - not rocket science: some thoughts on 20 years of consultations on the future of the BVC and pupillage

In her paper at the Learning in Law Annual Conference 2008 Frances Burton (University of the West of England) drew on her long experience of delivering the Bar Vocational Course (BVC) at various institutions to entertain participants with personal reflections on the evolution of the course. Many issues arising today have, upon investigation, surfaced before, and can often be distilled down to a simple principle – ‘it’s all about advocacy’. Her presentation was spiced with a number of reflections from the practising Bar, such as “I would have been a better barrister if I had been a judge first…”. Now there’s a challenge for course designers!

Frances was formerly Director of the BVC by open learning at the University of the West of England, as well as Vice President of the Association of Women Barristers (AWB) and Vice Chairman of the International Bar Association Academic and Professional Development Committee. An earlier version of this paper was debated at the Society of Legal Scholars’ 2006 annual conference – it remains work in progress due to the pace of change following the inauguration of the Bar Standards Board and its programme of review. A final version (if and when there ever is one!) may be obtained from Frances on e-mail frb@frburton.com.

Twenty years of consultation

In recent years more or less every 12 months has provided an opportunity for widespread exasperation in the large and varied constituency comprising those interested in the future of vocational legal education – paper after paper has been published (and dutifully responded to by the various stakeholders) on reform of the Bar Vocational Course (the BVC) and the Legal Practice Course (the LPC), culminating in the Bar Council’s consultations on deferral of call and the Law Society’s Training Framework Review, then the Society’s later consultation on work-based learning (an immediate follow up to the expensively commissioned and abandoned Training Framework Review). This is not to mention a plethora of consultations and papers which have gone before, including those earlier considered by the Standing Committee on Legal Education.

Up to 2006 the only positive factor in this apparently unfocused attack on rainforests was the Association of Women Barristers’ discussion paper on pupillage (Kaul 2005), which, by at last looking at the broad picture, picked out the one macro issue which in fact drives all the micro tinkering with the BVC and the emotion surrounding that and deferral of call (which thanks to the newly created Bar Standards Board came to nothing with their first evidence-based report in 2007) – namely that the BVC, pupillage, obtaining a tenancy and immediately embarking on continuing professional development (CPD) are all links in an important chain in training for the Bar up to the point at which a barrister can practise independently.

Had this been done in the first place, and perhaps a brief glance spared towards the simple principles of Bar education of the past which produced the great advocates of legend, much time, trouble and expense might have been saved, since it is pointless to discuss the content of the BVC (as it was even to consider deferral of call) without also considering the present arrangements for pupillage which are now seriously out of date, so it is no surprise that, following the release of the Neuberger report (Bar Council 2007) on entry to the Bar and the initial work of the Bar Standards Board’s BVC Review Group (chaired by Derek Wood, which reported in July 2008 – see Bar Standards Board (2008) – see the references section at the foot of this page for full details), we hear that the Bar Standards Board is to review in 2008-09 not only pupillage but also CPD for the Bar, setting out its stall for the provision of a holistic solution.

High hopes were raised by the post-Clementi separation and restructuring of the Bar Council’s regulatory and representational roles which created the Bar Standards Board (the originator of the 2006-07 deferral of call consultation, the report following which seems finally to have had the muscle to knock this particular irrelevancy on the head), so it is good to see the new Board grasping the obvious nettle and explicitly saying so in its published papers – that is that someone needs to look at the issues as a whole since they are so interwoven that change in any one will impact significantly on the others. The obverse of this coin is that it also serves notice that a holistic view simply suggests how all the currently contentious issues might fall into place if considered as a whole.

The mischiefs to be addressed: costs, diversity, course content and rigour

Much has been made in the multiple consultations as well as the popular press of the rising costs of access to the Bar, which (on top of the rising mountain of graduate debt generally) adversely affects the commitment to diversity enshrined in the Bar’s Code of conduct and in the articulated ethos of the profession – the final concern is of the dubious content and suspicions of lack of rigour of the present BVC, inaugurated by the then Council of Legal Education in its Inns of Court School of Law in Grays Inn in 1989 but devolved to a number of validated institutions in 1997.

It should be remembered that the BVC was originally designed to introduce a skills-based training at a time when the only alternative had for many years been a written examination, for which it was said that students simply crammed – much as they had done since my grandfather’s day, when in the reign of King Edward VII ‘reading for the Bar’ was either a gentlemanly self administered occupation or a simple process of bolting on to mostly Oxbridge law degrees mastery of the content covered by simple examination papers in evidence and procedure, with or without the help of the leading crammer of the day, Messrs Gibson & Weldon of glorious memory, one of the two parents of the 1960s creation of the College of Law.

Various unsuccessful or sadly half baked attempts have been made to address these twin horrors of costs and diversity, alongside the generalised (and often not convincingly articulated) concerns (largely based on unease with the quality of the course at one provider) about whether there should be changes to the composition of the BVC. The imbalance between the numbers of students entering the BVC (approximately 2000 annually now) and the supply of pupillages (currently approximately 500 registered vacancies annually) has also been a chronic cause for concern, together with a suspicion that the large numbers of BVC graduates – four times the necessary supply seeking the too few pupillages – automatically meant the BVC was too easy and ought to be made stiffer, and this was said to be much more critical an issue in the context of the proposal for deferral of call. However, until now all this has been mostly a chronic background ‘noise’ rather than ever culminating in a structured campaign, and it appears that only recently with the Neuberger report and the BVC Review Group has any coherent thought apparently been given to a way forward out of this forest of lamentation and into some workable future plan.

The Neuberger report

The Neuberger report considers most of the relevant previous consultations and reports and provides a helpful overview of the most relevant, although it misses some extremely relevant research, including Joanna Shapland’s most recent report for the Bar Council in 2006 (only privately circulated), which looked at issues extremely central to both the BVC and pupillage, namely to what extent the practising Bar might be willing to participate in a more innovative approach to both the BVC and pupillage, for example some sort of sandwich course. (Shapland, Director of the Institute for the Study of the Legal Profession at the University of Sheffield, has prepared a number of reports on the BVC and pupillage for the Bar Council, which it would be particularly useful to follow up now.)

The way in which Neuberger is different from earlier reports is that it provides a list of recommendations, which although daunting in its number (55, probably most of which are not instantly or even relatively quickly, attainable), does flag up issues which have been mentioned, in most cases more than once, in previous reviews and consultations and yet then apparently discarded onto the back burner if not directly into the bin. The real difference may be in whether the Bar Standards Board now has the vision to see which need to be prioritised, the muscle to take them forward and, most importantly, actually does make them happen. For a profession which likes to be paid for talking it is curious that so little that was in its interests has been implemented previously, or perhaps that is the explanation for the lack – barristers do not do things unless they are paid, so a keen business case probably has to be made to achieve any progress.

The Neuberger recommendations are divided into seven chronological sections, rather like Shakespeare’s Seven Ages of Man, addressing the way the Bar and its institutions should interact at the stages of:

1. Secondary education in schools
2. Tertiary education in universities and other graduate education providers
3. The vocational stage of the BVC
4. The training stage of pupillage in chambers or elsewhere
5. In initial tenancy or employment
6. In on-going practice when retention is an issue
7. In effect endpapers – statistics, monitoring and funding

It should be remembered that Neuberger was set up by Geoffrey Vos QC, then Chairman of the Bar, to look primarily into entry to the Bar, so it is concerned to a great extent with, first, establishing whether the Bar is getting the best and brightest recruits (the answer to which seems to be “no”), although this is the issue about which many independent evaluators have the largest credibility gap, and, secondly, securing those apparently longed for best brains from atypical backgrounds.

Costs

Taking the hot issue of costs from the last section first, Neuberger has certainly learned from the catastrophic reception of the financial proposals in Mountfield and its spin offs, as well as Calvert-Smith (2002), Goldsmith (1998) and Tuckey (1999), of which Mountfield most, and very much, irritated the practising Bar. (These reports and others are summarised in Appendix 5 of Bar Council (2007).

Neuberger proposes, first, a loan scheme similar to that for undergraduate student loans which has now been in place for almost a decade (though hopefully a contemporary scheme would be more successfully managed this time), and, secondly, an innovative sponsorship scheme which would enable those employed barristers who cannot actually offer pupillages (since this impacts adversely on the cost centred budgets of the corporations and institutions which employ them) to persuade their employers to fund such pupillages.

This seems an inspired idea, and is not unlike the corporate funding available to university students for which such companies and institutions can see a business case. The employed Bar would no doubt be more than willing to consider such a sponsorship scheme, since BACFI (the Bar Association for Commerce Finance and Industry, which is much longer established than the Employed Bar Association) not only considered, but actively promoted an initiative for a pupillage course for their members some years ago, the brainchild of its then Chairman (now Vice President and also a Vice President of the Association of Women Barristers and Bencher of Inner Temple, Susan Ward, who is General Counsel for a banking organisation in the City, and was coincidentally the first Chairman of the Employed Bar Association).

Both these schemes also go some way to meet the needs of those who seek to make the BVC a genuine trainer for alternatives to the self employed or employed Bars, that is for those who either decide the Bar is not for them after all, or those who turn out not to have a real aptitude for practice in either context (which can certainly happen, as students at the point of BVC entry have many misconceptions about both the Bar and the BVC). They comprise an extremely practical way forward which should be developed in consultation with the banks, which are only too keen to obtain future lawyer customers in their student years who will in due course more than repay this sort of subsidy, and which despite credit crunches always have the money to underwrite this sort of venture.

There are of course other ways of reducing the costs of the BVC and pupillage, which are more properly considered under the heading of the content and delivery of these two important stages of training.

Outreach: schools, universities and colleges

It is worth disposing of this next in order to identify the profile of the student for whom one needs to consider the content and style of the BVC and pupillage. One suspects that the concepts behind improving outreach in the secondary and tertiary stages of education may the hardest area in which to move forward, and must ask whether it is even possible or whether it is just chasing rainbows.

The emphasis in this part of the Neuberger report is on attracting all classes to the Bar and, in order to do that, starting in schools early, much earlier than now, then continuing the work at the university stage, the object being to dispel the Bar’s unhelpful image as pompous, self congratulatory and self satisfied, not relating to ordinary people and putting off atypical candidates of ability who may feel they would not fit in.

The report states that the working group wanted to get rid of discrimination and the offputting perception in the eyes of the atypical student of continuing discrimination regardless of all initiatives. The report says that the working group accepts social inequality, but that they “want to improve the present situation as much as possible” and “that must be the target”. They want “the best entrants from all backgrounds”. These are excellent principles, especially improving the image of the Bar, which gets an unfair press, despite the Bar Council’s PR efforts, but it begs the question of whether we are in fact not getting the best entrants.

The fact that we are getting some weak students does not mean that we could maintain present numbers (which itself raises a query) and get better students, as emotional intelligence is an important factor here as well as academic merit, and there is no evidence to show whether there may or may not be ‘better’ students available to replace some of the weak students. Maybe those with the alleged academic merit that we would like to come to the Bar are not applying because they want a different an entirely different career. Why should we assume that ‘the best’ necessarily want to join our profession – especially if we are still seen, despite all public relations efforts, as so ‘stuck up’? All the evidence points to the fact that the majority of those who want to be called to the Bar are the weaker, not stronger aspirants, and that seems to be confirmed by the fact that only a quarter of the intake obtains pupillage each year.

It is fair to say that this issue is not something that received a lot of attention in the early years of consultations about the future of Bar education following the implementation of the BVC in 1989. Indeed it is only a little over a decade since the Bar Council appointed its two Equality and Diversity Advisers, Kathryn Hamilton and Pamela Bhalla, then called Equal Opportunities Officers, and still in post today. 1995 was the watershed year, which also saw the first Chambers Management Standards. In the period since Kathryn’s and Pamela’s appointments they have done much to improve anti-discrimination practice in the profession.

In the same period judicial appointments and silk, with some prodding from the equal opportunity officers, the various Bar sub-committees they served and the Bar minority groups and associations, received a considerable shake up with the appointment of first Judicial Appointments Commissioner, Sir Colin Campbell, Vice Chancellor of Nottingham University, who had the power to investigate complaints and comment adversely on poor practice. His reports and findings on the conduct of judicial appointments competitions during the period from his appointment in 2001 indicate what a watershed for attitudes his period as First Judicial Appointments Commissioner was and how robustly he contributed to the debate during his years in office. The Judicial Appointments Commission, set up in 2006, has now removed all judicial and QC appointments from the Lord Chancellor and relocated them into what is seen as a system of top equality and diversity good practice. Whether that is in practice true or not remains to be seen, as the statisticians tend to want a longer period for their work.

It is certain that over the past decade or so, and with all this going on, the culture of the Bar has changed to some extent (despite the unhelpful inaccuracies of Judge Deed on TV as opposed to the now equally inaccurate, because out of date, image of Rumpole, although we could talk to Sir John Mortimer about this, as at the age of 85 he is writing profusely again and in the interests of the profession which he much enjoyed during his years of practice, could well be steered away from his lovable old junior of 40 or even 30 years ago into some accurate presentations of life at the Bar as it really is today).

Great efforts have been made by the Bar Council to improve the Bar’s public profile. Both the Bar Council and the Inns have highly informative websites for aspirant Bar students, the Inns regularly trawl at least the Russell Group universities spreading the latest word, and lately have considered how best to reach out to the remainder of the UK’s 100+ degree awarding institutions, where it is fair to say that statistics show that some clever people are found already coming to the Bar each year, even if figures are disproportionate to the historic feeders.

With regard to starting earlier in schools, the Bar Council has already set up and maintains its Speakers for Schools programme, in which volunteer members of the Bar are sent as speakers into (mostly) sixth forms where careers staff have requested a speaker to make the Bar come more alive in a short presentation (for which the Bar Council provides materials including slides). This is usually followed by a question and answer session, sometimes with on-going contact with the speaker for both staff and pupils. There have also been mooting, essay and negotiation competitions, with mock trial competitions most recently extended to schools to raise the Bar’s profile.

Despite all these commendable initiatives none of this has demonstrably done anything to increase the measurable numbers of clever atypical students coming to the Bar (and from the Bar, going into the judicial appointments pool, which has its own diversity concerns). In any case the statisticians say it might actually be too soon for some of these profile raising initiatives to feed into tangible results, since a decade is not really long enough to show a significant track from secondary school to tenancy, and, while some influx of atypical practitioners into Chambers might have made the Bar more willing to accept a shift in socio-economic statistics within its ranks, that does not mean that the Bar is now a profession of Cockney barrow boys in the way that for example City traders had a makeover after Big Bang in 1987 after all barristers are trained to be independently open minded and driven by evidence rather than unfounded supposition, so they can make up their own minds about what influences they wish to impact on their professional lives. Indeed this independence, and tendency not to be easily led, is the reason the Bar is such a useful elite referral profession to advise instructing solicitors, who are often too close to their clients to be able to view a case dispassionately, even if they cared to do what they see as barristers’ specialist work. All these initiatives almost certainly have not changed the prevailing culture of the Bar, which despite its on-going social mix maintains a certain scholarly style into which the ‘brightest and best’ might well be absorbed, but in achieving this it is they, the so called brightest and best, who will inevitably change to mirror those already at the Bar rather than vice versa.

Thus the first question is: “Are statistics captured actually 100% accurate?”, since diversity is permeating earlier stages of education too, but observable results may be obscured since data are seldom completely black and white, so how do we know that the absolutely correct data has been fed in to produce demographic profiles? The second question is “Assuming we are not getting all the brightest and best applicants, will any further initiatives in fact reach a significant number of potential barristers from atypical backgrounds who are not already reached if they wish to be reached?” (which, as mentioned above, it is conceivable that they may not).

With regard to the time period in which social change in the makeup of the Bar is measured, there may not yet be a sufficiently identifiable stream, even if statistics are accurate. The intelligentsia slated the Lord Chancellor’s Department when Lord Irvine spoke of a likely eventual ‘trickle down’ effect in significantly increasing numbers of able women in the higher courts – the media said it was not good enough and pointed to the practices of other jurisdictions, such as California, where appointable women were actively sought out and encouraged to apply for judicial office virtually at gunpoint, which in turn invited adverse comment from the equality and diversity lobby as ‘positive discrimination’, seeing it as just as bad as the former ‘tap on the shoulder’, which used to be the only recruitment of English judges and was only abolished for the High Court two years ago. So it seems we cannot wait for social inequalities to become flatter and for more children and young people to aspire to the Bar so as to present an identifiable cohort of ‘new people’, but must make more proactive effort to achieve it.

In this positive spirit Neuberger has some keen ideas for getting more information about the Bar into schools and universities, flagging up the value of a new Law, Legal Systems and Lawyers module in the National Curriculum, suggesting ‘cool’ modern moves such as supplying a DVD and podcasts for students and their teachers, together with structured training for career advisers, the use of student ambassadors, approving and encouraging wider use of innovative schemes such as the Denham initiative linking specific schools with universities to encourage the take up of suitable degrees, promoting mentoring and local links with Chambers, circuits and specialist Bar Associations and funded, and much shorter, mini-pupillages, to provide a larger number of work placements. The report suggests a Bar Council appointed coordinator in effect to market the Bar, together with an effective loan scheme to make access to real work experience more feasible for the socially disadvantaged, following which it is thought that if schools are reached early enough there will be a sea change in attitudes to the Bar.

While these are all very good ideas, one suspects that they probably will not achieve the desired result, even if there are people out there who would like to be barristers and for one reason or another cannot consider this. Although a basic Law and Lawyers module in the National Curriculum would no doubt be a good idea, the Citizenship Foundation already does a certain basic amount in this respect, but school timetables are already pressured and for each new module something has to be deleted. This is already the despair of the private sector, and State schools are unwilling and often unable to promote extra-curricular work since they have their own problems in delivering more basic education. Moreover, some of the most backward countries in the world have had this sort of citizenship module for 50 years without noticeable benefit. An example is Colombia, South America, where only a very small proportion of the population is socially mobile (except of course in the profession of drug smuggling, where they hold the world championship, outright, against all comers, and the entry tests do not resemble A levels, law degrees or the BVC!) The reason for despondency about an enhanced information programme is of course that with the existing information anyone at school or university stage who feels inclined to go to the Bar already has the pathway sufficiently signposted, and to some extent assisted, even if such facilities are not perfect and doubtless could, and should, be improved.

The diversity and equality problem is not in effect informing the ‘brightest and best’ of the opportunities at the Bar and getting to them early enough to make it possible for them to get to the Bar, but in tackling the social inequality which is the initial handicap before one can even provide any support. Research has only recently shown that the problem is not one of class at all but of family background. The Conservative party recently analysed government data which shows that the achievement divide between children in richest and poorest areas has widened dramatically by more than 10% in the past year (as opposed to a 1% divide in previous years), and that the gap widens further as children go up the school – 20% at 7, 43.1% at 16. It seems the middle classes who can afford to live in areas with better schools get a better start and then reinforce their advantage, while those trapped in more deprived areas suffer disproportionately.

This supports the concern of the Chief Inspector of Schools, who has the same figures, that children’s attainment is being divided along socio-economic lines. It is also supported by the school league tables, where on a cursory perusal one may find a London school which is the lowest achieving in the country but does have access to the very information and placements which Neuberger thinks will help. This happens to be a school, of which coincidentally a member of a socially conscious set of Lincolns Inn Chambers is a governor, where we also know a newly qualified top quality teacher from UCL and the Institute of Education who is similarly motivated, and who is a member of staff teaching sciences in the sixth form. This school actually has both the worst A level and the GCSE results in the country, not by a whisker but by a long way. Each year Chambers in pursuit of its outreach has some of these children in on work experience placements, from which sadly it is clear that it is not the quality of teachers with a vocation which marks the divide between academic success and failure in secondary and tertiary education (which is an important distinction at point of entry to the Bar where it is too late to turn failure round) but the students’ family background.

Good teachers are certainly a plus point, and this might be the best thing the government could do to raise standards in areas of marked social inequality, but the fact remains that even with poor teachers a bright child will flourish if there is quality home support, with a disastrous home background and the best teachers in the world the child will struggle. There is not a lot of statistical evidence in this area of study for obvious reasons, but Neuberger admits the value of anecdotal evidence in lieu where necessary and it seems there is plenty of that. There was recently an opportunity to consider some assessment data from the school mentioned above, including in respect of one typical girl who is considered to have the potential for A grades at A Level but her performance is at best presently C, and that is on a good day. The problem is that she is in school so sporadically because of her appalling family background and lack of support at home, and when she is present she is half asleep and underperforming. Why is she not in care then so she could be rescued from these appalling circumstances? Sadly because she is no worse off than many others -half the school would have to be in care if everybody had their rights.

Indeed the only conclusion that can be drawn from this school, and others like it if not quite as bad, is that the only way the school itself can go is up, and that in a wider context it is very unlikely to be poor teaching which adversely affects a child’s educational opportunities but much more likely to be a deprived and unsupportive family background, since a bright child will overcome the former but the latter is always a devastating and ongoing handicap. This school has not surprising not asked for a barrister from the Speakers for Schools scheme, however such a speaker could not seriously tell their sixth form at this stage about the Bar as this would be likely to be cruel, but about more attainable opportunities as a paralegal and for converting a law degree into membership of the Institute of Legal Executives, with opportunities for going on to qualify as a solicitor and perhaps transferring to the Bar at a later stage.

Content of the BVC and interface with pupillage

It has been generally agreed by all stakeholders, even the various student organisations, that a BVC of some sort is necessary. There have been radical student papers which have produced a case of sorts for significant shortening of the single academic year course from September to June full time (or two years part time), and even suggestions, debated by the BVC Providers Group, that there should be no obligation to follow a course at all but that the BVC should be an assessment only pathway for which the fact and style of preparation should be optional.

The present specification for the BVC dates from the report of the BVC re-specification working group chaired by the Hon Mr Justice Elias (generally referred to as Elias), adopted by the Education and Training Committee of the Bar Council for use from September 2002 and periodically amended since. The length, of at least the present 32 weeks, supported by some new practical suggestions about rigour, is reinforced by Neuberger Appendix 9, which comprises the recommendations from the fifth draft of the report of the Wilson Sub-Committee of the Bar Council, a working group chaired by Richard Wilson QC, a black silk from Bedford Row who was involved for one of the Bar Minority Groups in the Lord Chancellor’s Working Party on Judicial Appointments and Silk, and was at that time involved in the sub-committee which persuaded Sir Colin Campbell that a separate Judicial Appointments Committee was needed in place of the Lord Chancellor’s quasi-patronage in order to secure any modernisation. The Wilson Committee’s recommendations were first unveiled at the BVC Providers Conference at Windsor in July 2006, and, in summary, want national assessment (last seen in the old style Bar Examination in the 1990s) to be brought back, with a nationally set examination, marked locally to nationally set rules and standards, by experienced tutors at the validated institutions where students are registered and taught, a new specification and more rigourous quality rules, reflecting both the increasing rigour of practice at the Bar and its increasing specialisation.

The Wilson proposals (with a modern twist and without abandoning the skills) revert very closely to the early mix of the old style Bar Examination, but with some polish from the new Inns of Court School of Law (ICSL) BVC of 1989, as practised at BPP Law School in the early 1990s, when that law school was set up to modernise the old Bar Examination teaching immediately after the ICSL went over to the BVC. At that stage the ICSL’s alter ego, the Council of Legal Education (CLE), assumed a loosely advisory role, sharing their old materials and some guidance on delivering them with university law departments which then decided to offer a course, while the CLE retained the tasks of setting, arranging marking and moderating, and holding the examination boards for the national examination, which at that time was taken not only by home students intending to practice in England and Wales but also by many Commonwealth students whose jurisdictions recognised Call to the English Bar as qualification locally.

This worked extremely well in a well run law school, such as BPP, and not at all badly in less well run institutions, of which there were quite a few whose students regularly did not pass. Students very quickly formed their own views of where to go to ensure that they passed the national examination, and soon got the hang of choosing where to enrol correctly, or if necessary moving to a provider delivering capable tuition (necessary in those days, as the CLE did not validate or quality assure any courses). BPP also offered, particularly for those foreign students who could not get onto the ICSL’s BVC or home students who were not sure if they wanted to practise or not, some advocacy and other skills training and a series of extracurricular lectures, which provided a well rounded preparation for the nationally set examination, and together with the Inns’ input (Cumberland Lodge/West Dean weekends, Dinners, social events, EU institutions trips and education sessions similar to today’s Education Days) this provided a real introduction to the spirit of the profession and took most of the demands of the collegiate emphasis of Bar education off the providers.

In the context of a nationally set assessment as proposed by Wilson it would be good to see the Inns taking a larger part again, for which they have their own voluntary tutor force and more support from the Circuits. The Wilson suggestions, although probably not terribly welcome to the providers who might see diminishing BVC numbers, seem only right in a context where there is widespread discussion in the practising profession about the relative values of a BVC qualification from different providers. However, providers could always make up their revenue with CPD provision and the additional Masters courses that Wilson also envisages to ‘finish’ those (significant numbers of) BVC graduates who do not go on to practice at the self employed or employed Bar.

It is fair to say that the decision to open up both teaching and assessment of the BVC to outside providers, which took place at a time in the mid 1990s when the present Lord Chief Justice was the judge presiding over the CLE, did raise consistency concerns at that time, which have only got more marked. It is also clear that there is a marked divergence in teaching standards, although, despite periodic grumbles elsewhere, only one London provider which does not provide a full week’s teaching (although it is fair to say there is a lot a BVC student should be doing in independent study in out of class time) is consistently criticised by students. If the Bar is going to meet the challenges of contemporary practice, national assessment is probably an essential step in the right direction and not before time.

Wilson wants basic knowledge of criminal and civil litigation taught at a general introductory level, and for students then to choose from a number of specialist advanced litigation options, also practical legal reasoning and evidence assessed as skills, more evidence integrated into skills course, a unified mediation advocacy course, a reformed negotiation course on a level with those of those offered by leaders in the field and assessed forensic accountancy and equality and diversity principles, together with practice management skills, comprising the “basic principles of how to run an effective modern professional practice at the Bar” together with some ‘office skills’ (recognising that in most Chambers members of the Bar – unlike solicitors – are responsible for all their own typing, and although clerks negotiate and bill for their fees it is a barrister’s responsibility to keep a record of time spent so that it may be billed accurately.

All these points reflect contemporary practice at the Bar, and (with the exception of mediation advocacy which had not yet arrived on the scene in England and Wales) were in use in the early 1990s at BPP, either as part of or alongside the nationally examined Bar Examination of the time. Wilson also wants to prescribe minimum advocacy time ‘on their feet’ for students, a diploma in Professional Legal Practice for BVC graduates, and the course redesigned in such a way that most or all of it is taught at the Quality Assurance Agency’s Level HE4, so that it satisfies the criteria for a Masters degree either as a whole or following completion of a subsequent module. This emphasis on the primacy of advocacy may well be the key to the future of a truly contemporary BVC.

A recent issue of the International Bar Association’s journal International Bar News featured an article by the Australian Federal Judge Justice Annabelle Bennett, who believes that the relationship between judge and counsel is a crucial one and that good communication is the key to a successful outcome. She sees this as the legacy of the great advocates, and that when presenting their cases in courts counsel need to think about what the judge really needs to know. In other words what is wanted is ‘good old fashioned advocacy skills’. She says: “one of the great skills of the common law system is oral advocacy. Through oral argument a judge can clear up a misconception she or he may have”. Despite most judges now reading the papers before a hearing, “being able to hear counsel, ask questions and get assistance means that the judge has a much better idea of the case”. She says: “A good advocate is not talking to a computer, a brick wall. She or he is speaking to a person who needs to be persuaded”. She adds that she engages with counsel for reasons of natural justice, so that the way she is thinking is put into the transcript and that engaging with counsel means that her attention is more focused. In doing this she believes that “the lawyers are working with me and we have a mutual interest in the result”. Of course she does not underplay the importance of preparation, and indeed appreciates that this is the foundation of good advocacy, which seems to sum up the BVC and the preparation subjects which underpin advocacy, its most important skill.

The Wilson suggestions at point of entry to the BVC also seek consideration of a minimum 2.1 degree (or equivalent CPE/GDL grade, presumably a Commendation), an English language proficiency test for both home and foreign students, and an entrance examination designed to test the student’s aptitude for the BVC (ie foundations of legal knowledge) and practice at the Bar. These suggestions are coupled with an expressed desire for a reduction in numbers and an improvement in the quality of BVC graduates, although it is also pointed out that implementing the tests and the raised entry levels would be likely to achieve the desired reduction and raising of standards without any such numbers targets being set.

The Association of Women Barristers paper

Wilson is not the only source of radical suggestions for the improvement of the BVC and its closer links with a radically reformed pupillage. The Association of Women Barristers (AWB) paper (Kaul 2005), drafted by the then Chairwoman of the Association, Kaly Kaul, a senior criminal practitioner, proposed some radical changes to the current BVC and arrangements for pupillage which could be the basis for practical arrangements which build on the best in the past history of Bar education, and which could suit both contemporary and future demands.

The AWB has a substantial student, pupil and young tenancy and employed Bar membership, as well as a number of senior practitioners who between them have seen every stage of the old style Bar Examination and the post 1989 BVC. The Association’s senior members have also seen every stage of pupillage, from the informality of the 1960s to the present OLPAS and non-OLPAS paid pupillage structure, from which any deviation in the former tradition of the Bar to provide some voluntary work experience in pupillage for Commonwealth students returning overseas is now rigidly controlled by the Bar Council’s ‘waiver’ system. They were thus well placed to think around practical proposals, although as will be seen this debate has been going on so long that not even the AWB’s proposals are ‘new’ as such – they have been advanced before, in the radical 1999 discussion paper ‘Restructuring vocational training for the Bar’, which proposed a BVC and pupillage sandwich course, approved by the General Management Committee of the Bar Council itself on 24 June 1999, to be introduced in 2002, and, incredibly, shelved like so much of the paper that goes through Bar Council committees.

It is a sad fact that the most recent Bar Council consultation on the vocational stage of training for the Bar, generally referred to as Bell (2005) since it emerged from a working party chaired by Professor John Bell, Past President of the Society of Legal Scholars, and concentrated on the future content of the BVC) was conducted outside the simultaneous plan to introduce deferral of call from 2008, since although deferral itself has now been wisely killed off by the Bar Standards Board, since it provoked the final exasperation of consultees suffering from consultation fatigue, it also meant that a number of irritated responses were generated, voicing considerable dissatisfaction with the BVC and its costs. This dissatisfaction was expressed by Chambers, Inns and both current and recent BVC students. At the same time, and no doubt driven by this dissatisfaction, the AWB proposed a severely edited and restructured BVC with a pupillage sandwich element, in which every student would learn much of what is now taught in class ‘on the job’ in Chambers – and this under the eye of practitioners who would then be able to see that BVC students (suitably prepared in a reduced introductory period) learned in the nonpractising first part of pupillage what is required for the second (practising) six months and that only those who ‘passed out’ of the first six months should progress to the second six. This proposal would reduce the BVC to no more than a total of six months in class, done in two blocks, and produce the sandwich course which (the Middle Temple response to the Bell paper revealed) was adopted in 1999 and then shelved.

It would also reduce the costs and open up more opportunities for flexible learning and overall improvement in standards, since Chambers are well placed to know what they want in a pupil and potential tenant, and there is no doubt that some of the Inn responses to Bell indicated that practitioners delivering voluntary training in the Inns would far rather do that than allow students to have to relearn in Chambers some of the bad habits learned, often at length and laboriously, at the BVC stage when this know-how could be imbibed more quickly and efficiently in Chambers and in the Inns’ courses in pupillage, thus freeing more time on the BVC to hone their legal knowledge, which is often seen as deficient in Chambers interviews, entry tests and pupillage itself.
h2. Flexible learning and costs

The AWB paper goes well beyond addressing the old chestnut of costs of the BVC, which everyone concedes are an important issue, but not the most important, since that is whether the BVC is adequately preparing contemporary students to be contemporary trainee barristers. In this connection Oscar Wilde’s comments on those who know the price of everything and the value of nothing come to mind, since there is no point in reducing cost for an inferior product, and conversely even an expensive product becomes cost effective if it is fit for purpose. What we appear to have at present is an expensive product which is not entirely fit for purpose, though its defects are sometimes exaggerated – not all BVCs are bad in the Orwellian ‘two legs good four legs bad’ sense, as anecdotal evidence given to Lord Justice Neuberger’s working party by students past and present shows – one large London provider is criticised, but the regional providers in particular are praised, inter alia for their full and demanding curriculum, when students from different providers inevitably compare their respective learning experiences while meeting at Dinners and other qualifying events at their Inns. If costs alone, especially of a sandwich course, are considered, there is already a mechanism for reducing overall costs to students by teaching those parts of the BVC which need at least to be included in a formal course through the several part time modes of the BVC offered by the providers over two part time years instead of the classic one year full time. These courses are offered either in evening or weekend modes, which enable students to remain in employment until the course is completed.

The most radical of these is the University of the West of England’s BVC by open learning, a part time block learning weekend course supported by intervening study periods where the knowledge is learned online, as is much of opinion writing and drafting and parts of the options. This is a system which actually enables students to receive more individual attention than is the case in a fully class-based course, because of the use of a customised online system based on Blackboard where work is submitted regularly online in exchange for suggested answers and students’ input either monitored (if it is for example on a discussion board) or returned with comments by tutors (online or in printed off hard copy).

There is no doubt this produces more effective feedback, with less burden on the tutor, than can possibly be produced in a face to face class, and also draws on that learning autonomy which is a specific Benchmark quality of graduateness which a student should have brought to the BVC from the academic stage of training. Moreover, the ethos of this self reliant learning experience is imparted in an intensive five day induction week. The first intake has now contentedly passed out of its final year (with a proportionately higher number of ‘outstanding’ and ‘very competent’ grades in their results and a proportionately higher pupillage strike rate than the larger full time course at the same institution). The second intake is currently into its second year and now over half way through the course, and a third intake started in autumn 2007. Recruitment of the fourth intake is about to take place in the current recruitment cycle.

Mostly the University has had to design its own materials, customising them from those used on the full time mode of the course (which was a burden on the tutors during the creative stage), but gradually some commercial products are appearing. For example, the panel discussion at the 2006 Society of Legal Scholars’ annual conference, chaired by Michael Petley of the College of Law (which has already introduced substantial online work on its LPC in the last three years) included Martin Hannibal and Lisa Mountford of Staffordshire University, whose earlier presentation in the same session focused on their own online contribution to vocational teaching, a criminal litigation manual with multi-media support (published by Oxford University Press ,which also publishes the ICSL BVC manuals, originally developed by ICSL in 1989 and now updated and republished annually. All providers issue these manuals to their students whether or not they also issue their own materials – which many do, preferring their own teaching styles). The panel was invited to consider to what extent an abbreviated BVC as suggested by the AWB paper could be an innovative basis for an overall restructuring of the BVC and a sandwich pupillage and having had the Hannibal-Mountford presentation immediately beforehand was cautiously impressed with the potential.

Following on from such a flexible course, BVC students who have financed themselves through a BVC by open learning by working throughout might be able better to complete pupillage part time, as is considered by Neuberger could be done. This would have to be achieved by lifting the present embargo on a pupil working during pupillage (other than in the traditional part time jobs of evening and weekend newspaper and law report editing, or reading publication for libel) and instead permitting pupils to work part of a week or a month (depending upon the employment available) and extending the pupillage beyond the traditional year. Other suggestions revolve around improving arrangements for pupils to be self financing from earnings in the second (practising) six months of a full time pupillage.

Much detail needs to be worked out here, which will be for the Bar Standard Board’s pupillage review working group to do, but if the principle is accepted that pupillage has to be made more accessible the detail could duly follow. The real benefit of the sandwich proposals, however, would be seen in the coherent progress of a Bar student from BVC application to junior tenancy, ie in the streamlining of the practitioner BVC to ‘second six’ pupillage and on to tenancy transition, since anyone who could get a BVC place would have some experience of pupillage, in a sandwich course would have the opportunity of hands on work experience in Chambers as well as of graduating from the new sandwich BVC, but only those who had successfully shown aptitude during the in Chambers sandwich part of the BVC would proceed to the second six, which would be the operative part of pupillage (as now) resulting in a full practising certificate. The remaining BVC graduates would have to seek out other avenues, either at the self employed Bar or outside the Bar altogether (which is when a ‘bolt on’ specialist Masters course, as also suggested by Wilson might be considered if the BVC was not a Masters in itself). This would serve to control numbers in a manageable and ethical manner without making the qualification so hard, or even impossible for some minorities, to achieve that, as the AWB warned “we destroy our own valuable profession”.

The AWB agrees with Neuberger in urging that “we must make it a qualification worth having in its own right, with recognised training and skills”. In this respect some regard must be had to the entry point at BVC application level, currently set at a 2.2 degree (in any discipline if a law degree is not held and the CPE/Graduate Diploma in Law is held). There have been arguments for a long time favouring raising this standard to a 2.1 (with discretion from the regulatory body in the case of a 2.2), and recent consensus amongst BVC providers that it is counterproductive to consider applications from those with Thirds, even where discretion is exercised, suggests that this may be an essential step to limit wastage of weak students.

Again this is far from new. The Taylor working party in 1991 first criticised the open door policy on the grounds of both wastage and unsuitability for a career at the Bar when a 2.1 was worth a lot more than it is now in most degree awarding institutions, and the debate has rumbled on for the ensuing 16 years while more and more weak students struggle through the BVC by taking individual bites at the resit cherry till they fall foul of the regulations and have to give up, or else graduate as (still) weak students. These students, if they have a real interest in and passion for the law, should be pointed in the direction of more easily attainable qualifications, of which there are several recognised in this country. If there are definable problems about qualification without Call to the English Bar in certain of our Commonwealth jurisdictions (such as the West Indies where there are particular difficulties) the Inns which have traditionally been the focal educational point in such countries, and the Bar Council, which includes every year in its annual plans and budgets support for foreign common law jurisdictions, should consider what could be done in other ways to help students from these foreign outposts of the common law who cannot obtain a BVC place in the modern context. Indeed, when he was Attorney General this was a project of Lord Goldsmith’s, which he might well be invited to progress further now he is no longer in office, especially as his other interest during his years as Attorney General was to achieve somewhere the establishment of an open learning BVC onto which could be sent Crown Prosecution Service personnel who had never had the opportunity to take a professional qualification but who could not be spared, even in the early evenings, to attend class in the working week.

Tenancy and practice or employment

Neuberger goes on to make recommendations for the improvement of the tenancy, practice or employment and profession building stages of a BVC graduate’s career. These are probably beyond the scope of the education and training stage, although the interface with CPD and lifelong improvement of a barrister’s skills are obviously important. The recommendations are mainly addressed towards maintaining good equality and diversity, and Chambers management, practice, and to retention of barristers at the key stages at which drop-out has been noted (and its reasons researched by the Bar Council’s Equality and Diversity Advisers). Mentoring (and monitoring and protection of minorities, such as of women coming off maternity leave or back to the Bar after a break, and of the disabled) is emphasised.

One important point about equality and diversity is that Wilson recommends that this should be assessed on the BVC, Neuberger recommends that more training should be provided for pupillage and tenancy selectors and that this should be continued into CPD for the Bar generally. It must be highly likely that any review of CPD by the Bar Standards Board will require similar ongoing CPD in equality and diversity, since this has already been required for many years by American State Bars (for exmple California, which even arranges delivery of at least one hour such training annually for its expatriate members who practise in Europe). Others besides Neuberger have looked at the Bar’s retention problems, for example the Department for Constitutional Affairs which ran a conference on this topic, with a related discussion paper (‘Entry to, and retention in, the legal profession’) in November 2004, which was also considered at the Standing Conference for Legal Education in the same month. Responses to this discussion paper do not appear to be collated anywhere, but the topic still reappears, without significant work appearing, at conferences (for example the International Bar Association’s 2006 Annual Conference in Chicago).

None of Neuberger’s five recommendations (guaranteed income streams in the early years, monitoring equality and diversity compliance, mentoring in Chambers especially for women returners from maternity leave and career breaks, guidance on disability in Chambers and ensuring these last two minority categories of barristers are not disadvantaged) are easy to implement. The Bar Council already runs a returners course (inspired by the equivalent Law Society course which has run successfully for many years), but the Equality and Diversity Advisers still receive complaints of non-compliance with the equality and diversity provisions of the Bar Code of Conduct. However the spectre of early failure and aborted career as a practitioner does not loom very large in most students’ concerns about going to the Bar, and it may be that this is an issue which cannot realistically be considered in tandem with the current concentration on the content of vocational training, but needs to be reserved for another day.

Conclusion

The various BVC consultations have begged as many questions as they have asked to be specifically answered. A much wider debate is required which includes the issue of pupillage, since vocational training for the Bar needs to be looked at as a whole and by the profession in consultation with the BVC providers. It should not be forgotten that this was originally how training for the Bar was provided by the old, pre City University, Inns of Court School of Law under the direction of the Inns (ie barristers and judges, and if anybody other than the client is the ultimate consumer, the judges as such certainly have a place in the debate). The fact that the Bar Council inherited control of Bar education when the Council of Legal Education (the alter ego of the old ICSL) was dissolved, and that the BVC has been devolved to other London and regional law schools as well, does not alter the fact that these providers need a close relationship with the profession for whom they are providing trainees, whether that be with the Inns, the specialist Bar associations, the Circuits, Chambers or all of them, and that this is not best served by simple regulation by the Bar Standards Board. It would in no way detract from the Boards’s regulatory role – and indeed its other usefully supportive roles, such as in their relations with overseas jurisdictions which still wish to use the BVC to give their lawyers a world class qualification if a structure were developed which made more use of the practising profession as such (ie not simply of those practitioners who sit on Bar Council and Bar Standards Board committees) to steer a reformed BVC in a positively practical direction for the benefit of profession and public alike. The present impression looks as though it is emerging from one of confusion, since the very questions in their consultation papers, and the contextual narrative which supports them, gave rise to a perception that the Bar Council did not know where it is going (which is not at all surprising, given the amount of regulation with which the BVC has been burdened with since 1997, so that it is now genuinely difficult to ‘see the wood for the trees’).

We need to go back to basics, or even back to the future, to utilise the input and free tutor force of the Inns in collating the contribution that now needs to be made by the practising profession with considerable benefits to Chambers – to modernise the BVC and pupillage, to take back primary ownership of their vocational training from the regulators (who are not educators but can delegate that function and monitor the results instead of having to do all the spadework themselves) in partnership with the BVC providers. Then it might be time to talk about developing the BVC wholly to Masters level and/or for a Masters or an MBA equivalent to upgrade the BVC qualification for those who do not want to stay at the self employed or employed Bars, and to hone the BVC to take advantage of all the technical advantages and sophisticated know-how which contemporary advances offer.

References

• Bar Council (2007) Entry to the Bar Working Party Final report (the Neuberger report) London: Bar Council (see Appendix 5 for summaries of previous Bar Council reports)
• Bar Council (2005) The vocational stage of training for the Bar (the Bell report) London: Bar Council (Word document)
• Bar Standards Board (2008) Review of the Bar Vocational Course: report of the working group (the Wood report) London: Bar Standards Board (PDF file)
• Bar Standards Board (2007) Deferral of call: final report London: Bar Standards Board
• Kaul K (2005) Pupillage London: Association of Women Barristers (unpublished, obtainable from the Editor of the AWB Newsletter on e-mail: awbeditor@aol.com)

Last Modified: 9 July 2010