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Editorial

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Wednesday, 8 August 2007

Deferral of Call

As you probably know, the BSB has announced that deferral of call is a non-starter. The issue was whether pupillage had to be completed first. The answer is 'no'.

The reasons are that deferring call would deter non-UK students and would make the question, 'who/what is a barrister?' less than clear. Instead there is to be an online register of barristers holding a current practising certificate.

I don't myself favour excluding all those without a pupillage from the profession. Not only do I accept the point about overseas students, but to do so would essentially amount to declaring the BVC only a half-way house (it would be interesting to see any submissions the BVC made on this issue).

The risk would be that good applicants were lost to the profession if you had to have a pupillage before getting a BVC place. If it were possible to have the open competition before the BVC then I would be in favour of doing it that way and simply admitting those with pupillage plus those signing a declaration that they had no intention of practising in this country plus those signing a declaration saying that they intended to seek pupillage later but understood that they could not call themselves a barrister even if they passed the BVC with distinction. But this would put Chambers in the position of acting like a clearing house for all those who failed to achieve a 2.2 - and perhaps any higher offer Chambers demanded - and seems impractical. There is also the question of whether the BVC providers would be prepared to continue on those terms. The economics would appear against them.

There is to be a formal statement issued by the BSB 'shortly'. Whilst the new system will clearly differentiate between practising and non-practising barristers. I don't know how it is going to discriminate between non-practising (never had a pupillage) and non-practising (taking a career break). Perhaps it doesn't matter.

None of this is as good as a sift in my view. The poll currently has the sift at 29% and a 2.1 only qualification at 46%. I think this is a real mistake - we are already screening people on the basis of how they buckle down aged 17-18. Now we want to do it again when they are aged 18/19-21/22. Then they practice (all being well) for 40 years plus - or about 8 times the total combined period of the studying on which they are thereafter judged forever. Are we seriously saying that no one develops intellectually or in terms of effort between the ages of 22 and 65ish?

I am familiar with the argument that such a cut-off allows for certainty. But it doesn't. Not everyone with a 2.1 will get a pupillage. Nor does a 2.1 (which may be all of 1% removed from a 2.2) actually focus on, still less decide, the question of who will be a good barrister. In my view it is a lazy way of sorting out the problem of over-supply. This is an opportunity to try and work out what makes a person a good barrister. We should take it.

Vote now. :)

14 comments:

Ninon said...

I am strongly opposed to the deferral of call. I am a part-time BVC student and, given that chambers generally recruit a year in advance, I started the BVC before I'd even applied for pupillage. I would imagine that the vast majority of other part-time students will also not yet have applied for pupillage by the time they commence the BVC. I was fortunate enough to obtain pupillage this OLPAS season and intend to go into practice directly after the BVC. I am currently in academia, however, and had I not secured a pupillage the qualification of barrister is still valuable to me as an academic. I feel that barristers in academia or in employed practice are rather omitted from consideration in the debate concerning deferral of call and pupillage. It seems to me that there is a notion that a 'proper' barrister is one who has completed pupillage and is in self-employed practice. I resent the insinuation that a barrister in academia who has not undertaken pupillage is somehow a failure who does not deserve to take the professional title of barrister. Regarding the view that candidates should be sifted on the basis of degree class - it seems to me that this is already happening to some extent. Contrary to oft cited opinion, not all BVC providers admit anybody willing to stump up the fees. The better providers receive many more applications than they have places available on the BVC and do sift out some of the weaker candidates. It was my understanding that it is a requirement of the Bar Council that those training for the bar have at least a 2.2 and some BVC providers impose a more stringent requirement of a 2.1. The onus should really be upon the candidates themselves to inform themselves of the difficulties of obtaining a pupillage and to decide whether they can afford the financial risk of undertaking the BVC.

Simon Myerson said...

Interesting, thank you. Care to say a little more about the BVC sift: where is this being done; who do you think are the better providers etc...?

lawyer-2-be said...

One would imagine that the non-practising (never had pupillage) will not appear on the register and the non-practising (taking a career break) will remain on the register for as long as they hold a current practising certificate, then removed from the register if their practising certificate lapses due to non-compliance with CPD requirements or whatever else is required to keep the certificate 'live'.

Not sure what kind of sift you are contemplating if you don't think that increased academic performance (ie 2:1 rather than 2:2) is an appropriate method (or at least one of them). Whilst you quite sensibly note that judging people on their academic performance at an age up to 22 ignores the fact that people develop intellectually as they go through life, the reality is that there is often very little else to assess other than short periods of work experience or whether or not someone has done some interesting charity work or mooted for their university (examples only, not exhaustive). Hence, the natural focus becomes academic performance. That, it seems, is what chambers are interested in. Unless chambers can be persuaded to adopt different selection criteria it's a bit like burying one's head in the sand to ignore this reality.

One interesting thing which comes out of your post is that you have not mentioned the increasing numbers of people coming to the Bar later in life, possibly as a second career, or maybe because people are simply late starters. They of course will almost certainly have developed intellectually between having attained the age of 22 and the age at which they are going through the process of qualifying. I speak from personal experience here. The problem for this group of people is that the methods of application for pupillage (especially the OLPAS form) looks like a conspiracy to keep them out. It's simply not designed to be helpful. It makes it very difficult for people to demonstrate their true ability and potential.

I would not think that only allowing those with pupillage to go on the Bar course is a tenable option. Not only, as ninon above has noted, would that completely wipe out the need for a part time BVC, it would also mean that those on the BVC would have very little incentive to do any more than kill time. At least when there is the prospect of some competition for pupillage there is an incentive to drive standards up a bit.

The only realistic way of sifting earlier (than pupillage applications) as far as I can see is to simply make the BVC providers look more carefully at those they admit to the course (and maybe reduce the number of places a bit to ensure less disappointed people). Whether that would require some entry test, an interview, or some other means of sifting, then it may be a way forward. It would also focus the minds of the providers more closely if they surveyed their students at the beginning to see who actually intended to practice at the English Bar and were then required to provide statistics to potential future students which would give some indication of success rates in terms of the proportion of those intending to practice who had actually attained pupillage and so on. That might provide further incentive to BVC providers to oly give places to those who they genuinely believed to be capable of achieving that goal. That however simply displaces a sifting mechanism to a place where the profession might think it is less appropraite. The profession would no doubt argue that it, and not the education providers, should have the choice.

Law Minx said...

It would be interesting to examine the statistics regarding admission to the 2006/07 in order to determine if numbers on admission have increased with any degree of significance the desire of some to beat possible deferral of call. I do not number myself among these people, but there are some out there - indeed within my own cohort - parfectly willing to expend the exorbitant sums involved just to have the title Barrister conferred upon them.Such people will have no qualms about using the title either, however misleading. In tandem with the certain ammount of mystery that the BVC Providers have as regards admision, this , I feel, is a dangerous combination that needs urgent attention. University Careers Centres have a big part to play in such issues leading 3rd year law students to believe that obtaining a place is highly competetive, and that, regardless of the class of the degree you obtained, you must be a pretty special person to have been accepted on to the course -hence inflated egos and sense of self importance; I cannot speak for other BVC Students, but this is most definately the case within my own cohort, where the pompous most definately overrides the practical.
Perhaps its time to go beyond the apparent simplicity of the current register, and split it into a number of parts for example, Part One (Practising/Employed Bar) Part Two ( Non Practising) Part Three (Academic) Part Four (Pupil) Part Five ( Student). This may, unfortunately require an element of card carrying, but many other professions are in the same boat and seemed to have side stepped their problems with such a system.

Law Minx said...

PS Just to clarifiy a point : By "Non Practising" I mean Barristers who are fully qualified but are taking a career break for one reason or another, or who are retired, etc. The Non-Practising Barrister who has not yet obtained pupillage remains on the student part of the register

Ninon said...

Law Minx,

I agree with the idea of some form of a publicly accessible register in principal, however would probably prefer something a little simpler than the scheme you propose.

If someone who has completed a medical degree can use the title 'doctor' why should someone who has completed the BVC not call themselves a barrister? Arguably there is a lot more scope for a non-practicing doctor to abuse their professional title than a non-practicing barrister.

The sort of unscrupulous people that it is suggested may misuse the appellation 'barrister', currently bestowed upon them at call, would surely do so irrespective of whether they are in fact permitted to use that title in a non-practising capacity.

It is an offence to attempt to exercise rights of audience without a practising certificate - why not simply extend this to cover those who attempt to offer legal advice or other legal services under the guise of ‘barrister’ without a practising certificate?

As for the problem of oversupply of BVC students, we all knew the risks when we started the BVC - if we didn't inform ourselves of the odds then frankly we only have ourselves to blame. Finally even if a BVC graduate does not obtain pupillage, this is hardly the end of the world. There are plenty of other options - convert to solicitor and apply for a training contract - teach - apply to the civil service or employed bar.

The following quotation from an opinion piece in The Times by Richard Morrison, was published shortly before I started the Bar Course. Having considered the odds, caution ought perhaps to have weighed against undertaking the BVC - but this piece sums up how I felt about it (albeit in rather dramatic fashion):

"It’s not wisdom that wins the Victoria Cross. It’s the insane dash against impossible odds. It’s not wisdom that paints the Mona Lisa or composes the Eroica Symphony. Wise people would never go into the arts in the first place. It’s not wisdom that compels people to push themselves to the limits of endurance in order to realise some mad dream. It’s a glorious perversity deep in their souls."

One might add that wise people would never go to the Bar in the first place.

I like to think of my ambition to pursue an arguably ailing profession under assault from the current government, the incursions of solicitors-advocates and the squeeze of legal aid funding as inspired by a “glorious perversity” deep within my soul.

Simon, I will refrain from commenting too closely on the relative merits of BVC providers, although a rather drunken senior member of one of the Inns expressed the view to me that there are two institutions worth studying the BVC at – one in London and one out of London (and I shall say no more). I also note that (as reported on Troubled Barrister’s blog) BPP are now only admitting students with a 2.i (at least to their full-time BVC) unless there are extenuating circumstances.

Law Minx said...

Hiya Anonymous,

Techincally speaking a Doctor isnt properly a Doctor until he or she has completed his/her pre-registraiton year in Hospital, but that's nitpicking. Though the Doctor has the capacity to do considerable damage, the fake/wannabe barrister is also easily capable of ruining lives, albeit to a lesser extent. I think that such wannabes could be prevented from holding themselves out as barristers if the monicker 'Student' was permanently attatched to their title until pupillage was obtained. If such a title was made available on a transparent register accessible by all then surely the public and any Instructing Solicitors would see for themselves precisely with who it is they are dealing. Those who persist in the fainciful by holding themselves out as practitioners could then easily be called to account by the BSB.
I fully agree with you in respect of your comments as regards BVC numbers - most of us do indeed know the odds, and rightly most of us have only ourselves to blame when things do not turn out the way they planned, but in all sincerity, If I'd wanted to become a Solicitor, I would have undertaken the LPC from the beginning - it costs just as much money and though the risk of not bieng able to secure a training contract is possibly slightly lower, its still a risk. Neither ,at present do I see myself as a Civil Servant and though Academe does have its attractions, I really see this as Plan B. For those who are not fortunate engough attain pupillage -and in this I may well, one day, have to include myself given that I am a late bloomer with totally rubbish A levels - it may indeed feel like the end of the world( albeit temporarily!) though not before I put up a fight. I want to become a Fully Practising Barrister; this carreer aim has informed the very core of my legal education from the get go. I do not believe for one moment that the profession owes me any sort of a living, but I am determined to give it a damned good go. In this respect, I would guess that we are fully agreed on the "Glorious Perversity" of a potential career at the Bar.

Mr Pineapples said...

Oh Gawd.

Earth said...

I dont think one should call themselves a barrister without having completed 12 months of pupillage - I never did.

If one stops practising as a barrister then they call themselves a "non-practising barrister".

Earth said...

Oh, and the 2:1 v. 2:2 distinction doesnt work in my experience. My mates who got 2:2's got pupillage before me (same age, similar previous experiences)

A lot goes matters on what uni you went to: a 2:2 from Oxbridge v. a 2:1 from a Met/ex-poly, for example?

Mr Pineapples said...

Earth - did they get their pupillage before you 'cos you got a Third?

Earth said...

Nay Monsouir Pineapples, I got a "top" 2:1 (missing a 1st by a couple of points).

Anonymous said...

Earth you have given me hope. I do feel down at the moment due to results but if anything it has made me far more determined to succeed.

Every person within the legal profession and involved with the Bar has given me pretty much the same advice. Plug away at it. I am going to take their advice and get what I want no matter what stands in my way, whether it be the fact that I haven't gone to Oxbridge or the fact that I haven't got a first or a 2.1 (explainable reasons).

In fact I know someone who has got an interview with a top set who is 2 years ahead of me and in the same position. I feel then it is a lottery and how you present yourself at the interview, this is the impression I have got anyway from the (ableit limited) nuggets of advice I have picked up.

On the subject of the BVC and the relative strength or weight it carries with interviews as opposed to your degree, I feel that the title should really tell all. Vocational. Does the Bar want people who are purely academics or do they want people who can advocate and do a job for chambers? I think the weight should be favoured towards the latter.

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