The Middle Temple Young Barristers’ Association (MTYBA)
Response to the Bar Standards Board’s consultation paper on Future Bar Training: Shaping the education and training requirements for prospective barristers
29 December 2017
1. The Middle Temple Young Barristers’ Association (MTYBA) is the organisation responsible for representing the interests of Middle Temple’s young barrister members. It does this through organising a range of events, opportunities and financial awards aimed at meeting young barristers’ professional needs, and provides a voice for the young bar in Inn-wide decision-making through MTYBA’s seats on the Inn’s governance committees.
2. Membership of MTYBA starts automatically from the date of call to the bar by the Inn and runs to seven years post-call. Alternatively, if pupillage is secured within this time the seven year period starts from the date of completion of pupillage. Accordingly, MTYBA members broadly fall into three distinct categories:
1) Pre-pupils: Members who have been called to the bar by the Inn but have yet to secure pupillage. This is the category the majority of MTYBA’s new members fall into.
2) Pupils: Members who are currently undertaking pupillage, either twelve month or third six.
3) Tenants: Members who have completed pupillage and are in their first seven years of practice.
3. MTYBA organises a variety of events and opportunities to cater for each of these membership groups, including: pupillage application advice and mock interviews, educational and CPD events, an advocacy competition, social events, financial award schemes for pre-pupils and junior tenants, a legal jobs and opportunities fair, and events focussing on mental health and wellbeing.
4. MTYBA seeks to represent the interests of those practising at both the self-employed and employed bar. The newly elected 2018 committee is comprised of three members currently practising at the employed bar.
5. MTYBA’s function and membership composition mean that many, if not all, of the issues addressed in this consultation have a direct impact on MTYBA members. Our response to this paper has therefore been prepared through discussion with the MTYBA committee, the membership, and by reference to previous consultation exercises which address similar issues.
6. As a whole, we welcome the opportunity to respond to some of the important issues raised by the consultation. As you will see, there are areas in which we strongly support reform, (for example, pupillage funding) others where we strongly oppose it (removal of mandatory Inn membership), and others in which we express some support for change, subject to certain conditions.
7. In preparing this response we have had the benefit of reading the draft response from the Council of the Inns of Court (COIC). You will note that there are several issues on which we are in agreement with the COIC response. Therefore save where we expressly provide a different view, we ask that this response be treated broadly as an endorsement of the view of the COIC response.
The role of the Inns of Court in Bar training
Regulatory oversight of students
Question 1: Should the BSB have regulatory oversight of students? Please explain why or why not.
8. We do not express any strong views on this question but would make some brief observations: The consultation paper refers to a need to filter out those of an unsuitable character (paragraph 53). Given that the Inns exercise a “fit and proper” test for membership, such a test presumably has this effect in any event. The paper also refers to the need/desire for the BSB to have access to equality and diversity data (paragraph 52). This could be achieved simply by asking the Inns to provide it on an annual basis, which presumably they would be content to do.
Membership of an Inn
Question 2: Do you think the BSB should continue to require membership of an Inn as a mandatory part of Bar training? Please explain why or why not.
9. Yes. The true benefits of membership of an Inn are, we consider, neither immediately or externally obvious. Most of these benefits (discussed further in Q3 below) such as the ability to create a professional network and receive educational and practical training from senior practitioners become apparent once they have been experienced.
10. Making membership optional risks creating a two-tier system – those “in the know” i.e. with an inside knowledge of what Inns offer to student members, and those not. Those “in the know” are more likely to be aware of the potential benefits derivable from Inn membership, for example scholarships, educational training and social opportunities. Those not “in the know” (and therefore more likely not to take up optional membership of an Inn because of lack of information of the benefits derivable) are, we believe, more likely to come from backgrounds which have no prior connection to the profession or access to good careers advice. This might result in the unfortunate outcome that those opting out of membership of an Inn are comprised of those most likely to need the help and support (financial or otherwise) the Inns provide.
11. We therefore support Option C.
Question 3: If you answered ‘yes’ to question 2, do you think the BSB should continue to require “student membership” of an Inn or set the requirement at the point of (or just before) being called to the Bar? Please explain why or why not.
12. Yes. Inn participation is an important part of vocational training. It allows students to start building a professional network at the vocational stage, which can provide benefits later when seeking further opportunities e.g. mini-pupillage or marshalling. The Inns are the only place to mix with practitioners at all levels of seniority from an early stage.
13. We consider that the educational opportunities provided by the Inns are equally important at the vocational stage – in our experience and through anecdotal evidence we have obtained, the advocacy training provided to students of the Inns is generally considered better than that offered by the course providers.
14. Furthermore, participation in committees (for example at Middle Temple, the Middle Temple Students’ Association) gives students experience of positions of responsibility and insight into issues affecting the profession as a whole. Qualifying sessions also provide important benefits – this is dealt with in further detail in response to Q8 below.
15. The combined effect of all the above leads us to conclude that student membership continues to be an important part of providing a platform into the profession and the development of students into young barristers. It should therefore be mandatory.
Educational qualification and fit and proper person checks
Question 4: Do you think the BSB should continue to delegate responsibility for educational and fit and proper person checks to the Inns of Court? Please explain why or why not.
16. We do not necessarily understand from the paper the rationale underpinning this suggested change. Furthermore we are not presently aware of any of the Inns knowingly admitting unfit or improper individuals.
Question 5: Do you think the BSB should require DBS checks as part of the fit and proper person checks? If you do, who do you think should perform this function and why?
17. DBS checks will carry a cost, which would in all likelihood be passed on to students. Undertaking such checks would also take up significant additional time and administration. We do not consider that these additional burdens are proportionate to the aims of the fit and proper person checks.
Question 6: Do you agree with our proposals to improve the current checks as described? Please explain why or why not.
18. In principal yes, provided that the additional costs are not passed on to students.
Question 7: Do you think that the Inns or the BSB should oversee student conduct? Please explain why.
19. On balance, we consider that the current process appears both fair and robust. The fact that (as referred to in paragraph 117 of the paper) three decisions in five years have been amended on review points, we consider, towards a system that is working. We therefore prefer Option B.
Question 8: Do you think that the BSB should continue to prescribe qualifying sessions as part of the mandatory training requirements? Please explain why or why not, including (if appropriate) which elements of the qualifying sessions are particularly useful to be undertaken prior to practice.
20. Yes. The paper identifies five arguably legitimate problems with the current system of qualifying sessions at paragraphs 140-144. We respond to each as follows:
1) Paragraph 140: We acknowledge that some sessions (e.g. dinners) take place in an environment that is more familiar to some than others. We further agree this may lead to some students who are less familiar with the experience feeling intimidated. However:
a) In our experience this proportion of students is small;
b) It is wrong to necessarily link enjoyment of qualifying sessions with: (1) familiarity with formal dining and (2) socio-economic background. There will be some students who are familiar with formal dining from university. This does not necessarily mean that they enjoy attending such sessions, and indeed our anecdotal evidence would suggest that those more familiar with doing so previously are more likely to be those disinterested with Inn dining. Our evidence also indicates that many who do not have previous experience of formal dining are generally more positively predisposed to these types of qualifying sessions. Equating enjoyment of qualifying sessions with socio-economic background does not therefore bear out on our analysis.
c) Non-dining qualifying sessions, for example advocacy training, lectures, or music nights, are less likely to engender a sense of unfamiliarity. At Middle Temple there are a sufficient number of such sessions that all twelve qualifying sessions can be completed without sitting down to a single dinner.
2) Paragraph 141: At present all qualifying sessions have to have an educational element in order to qualify. It is difficult to meet the objection posed by this paragraph without clearer examples being provided, but we accept in principle that some qualifying sessions may not be seen as useful as others.
3) Paragraph 142: We accept that financial considerations are important during the vocational stage. We also accept that the most desirable qualifying sessions tend to be the priciest. However:
a) At Middle Temple a significant number (and indeed the most of all the four Inns) are free to attend; and
b) Those that are not free to attend are, we submit, reasonably priced in the context of (e.g) going for a meal out, which students are likely to do from time to time. We find the anecdotal evidence provided at paragraph 142 that there is a pressure to spend money on qualifying sessions surprising, and not reflective of our own anecdotal evidence and experience.
4) Paragraph 143: We accept there are additional costs involved with out-of-London students attending qualifying sessions at the Inns and further that the sessions on circuit might be of lower quality/less well-funded. This, we consider, is the biggest drawback of current system, especially given there are currently a higher proportion of Middle Temple students on circuit compared to previous years.
5) Paragraph 144: We find it surprising that qualifying sessions are said to be offered too infrequently and at inconvenient times. Students are, in our experience, told to plan in advance which ones they wish to take and should consider taking responsibility to do so in any event. If students, as suggested, have been forced to miss classes to attend qualifying sessions this might suggest a lack of advance planning on the part of the students rather than because many sessions are scheduled at inconvenient times. The criticism in this paragraph that the scope of sessions is “too narrow” is not clear, and we therefore cannot respond to it.
Question 9: If you answered ‘yes’ in question 8, should there be any changes to the existing arrangements? If so, do you prefer Option B or Option C to reform our oversight of qualifying sessions? Please explain why.
21. We prefer neither option. Though twelve qualifying sessions might appear arbitrary and/or excessive, we submit that there is a sufficient amount of certainty/assurance around this number that any student who has attained that number has undertaken a certain amount of educational and professional development, regardless of what sessions they have undertaken.
22. Option B removes this degree of certainty/assurance. How will the requirement be fulfilled if not by completion of a mandatory number of sessions?
23. The difficulty with Option C is that we do not believe that students ought to be expected to know what they need from a developmental perspective. Asking them to work out what development they ought to be undertaking places an additional burden on students in an already demanding year. We would also query how such a process would be regulated/authorised.
Question 10: If you answered ‘yes’ in question 8, do you think that other training providers could provide qualifying sessions? Please explain why or why not, including what elements would need to be delivered by or in association with the Inns themselves to ensure their benefits are to be retained.
24. In principle we are not opposed to this, however we are wary of development of a tiered system referred to in Q2, where those who have a greater insight to the profession by virtue of familial connections or better careers advice know in advance which is the “preferred provider” of qualifying sessions. We would also identify the risk of moving students away from the collateral benefits of attending qualifying sessions at the Inns (e.g. the Inns as a professional hub) at a very early stage of their professional development.
25. We further submit that the BSB would need to be alive to cost, content and quality of sessions provided by other providers.
Question 11: Do you have any alternative suggestions for how qualifying sessions might help students meet the requirements of the Professional Statement?
Future arrangements for the work-base component of training
The length of pupillage
Question 12: Do you think we should allow pupillages to vary in length? Please explain why or why not.
27. No. We consider that longer pupillages may lead to abuse by Chambers seeking to hedge their bets and get work at the most junior end mopped up without committing to offering a permanent place in Chambers to the pupil. Shorter pupillages similarly could be abused by Chambers to generate revenue into Chambers quicker by placing the pupil into a fee-earning rent-paying member sooner, without committing to a suitable training period or offering the protection pupillage provides on (e.g.) insurance. We acknowledge that both these concerns are identified in the paper, but wish to emphasise the high risk, in our experience, of these eventuating.
28. A fixed and consistent period of pupillage provides certainty in what can sometimes be an uncertain time for individuals taking their first steps into the profession.
29. We further submit that the form of oversight suggested by paragraph 171 of the paper would be unlikely to weed out serial offenders given that ATO re-authorisation would occur every three/five years.
Question 13: If you answered ‘yes’ to Question 12, please tell us whether you think there should be minimum and/or maximum length associated with this change and what those minimum or maximum lengths should be. Please explain why.
30. Please see our response to Q12.
Provisional Practising Certificate
Question 14: Which option, if any, for reforming the award of the Provisional Practising Certificate do you support? Please explain why.
31. We prefer Option D (no change). The non-practising period of pupillage is very important to a pupil’s learning and development. It is an opportunity to observe and absorb, to acquire techniques and practices and ask questions in a safer environment without risk to the public at large.
32. We consider that the benefits of a six month non-practising period are predominantly felt by the pupils but (arguably) less so by the ATO, given that the pupil is not undertaking their own revenue-generating work for the ATO. Giving the ATO the flexibility to shorten this period could lead to abuse, increasing the risk of under-prepared pupils being encouraged or pressured into taking work before they are ready to. Again, we recognise that this risk has been identified in the paper but wish to emphasise our view that it is likely to eventuate in some circumstances.
33. We do not believe that, as suggested, using the proposed ATO re-authorisation process as a check or safety net would be adequate if such a process only occurs every three or five or years.
Question 15: Do you think the minimum pupillage award should be raised? Please explain why or why not.
34. Yes. We consider that pupillage awards paying below minimum wage are certainly unacceptable, for reasons which are self-evident. In addition, we believe that there is a strong argument in favour of bringing the level of funding up to the Living Wage Foundation rate. Annexed to this response is a paper prepared by MTYBA in 2015 on providing financial support to bar students and young barristers. As you will see from the paper, it sets out in detail the financial challenges faced by individuals seeking to undertake the BPTC and obtain pupillage. In this paper we continue to endorse the views expressed therein.
35. We understand the competing pressure on publicly funded ATOs to find funding for pupils. However, we consider that the current financial pressures on pupils earning below c. £20,000 without assistance (as identified in the annexed paper) are significant and highly detrimental. These pressures, we submit, outweigh those on publically-funded ATOs to obtain funding for pupils.
36. We further consider that the present minimum-funding arrangement is acting as a deterrent to able (but not financially supported) individuals applying for pupillage in the first place, leading to a talent drain on the publicly-funded bar.
Question 16: If you answered ‘yes’ to question 15, should we use the National Living Wage or the Living Wage Foundation benchmark for the minimum award? Please explain why.
37. Please see our answer to Q15.
Pupillage funding exemptions for transferring lawyers
Question 17: Do you think the current exemption from the funding rules for transferring lawyers should be removed? Please explain why or why not.
38. No. We consider that removing the exemption creates the risk that ATOs might favour taking transferring lawyers as pupils because of their prior experience, therefore reducing number of pupillages available to non-qualified individuals entering the profession either as young people or those from a previous (non-legal) career.
Re-authorisation of Approved Training Organisations
Question 18: Do you agree that we should introduce re-authorisation of Approved Training Organisations (ATOs)? Please explain why or why not.
39. Yes. Providing it is not an unduly onerous process on ATOs, we consider that an authorisation process would promote confidence from both the public and potential pupillage applicants that ATOs are properly regulated and meet minimum criteria.
Question 19: If re-authorisation were to be introduced, how many years do you think the defined authorisation period should last (eg 3 or 5 years)?
40. Five years seems acceptable.
Rules relating to the relationship between pupil supervisor and pupil
Question 20: Do you think the BSB should allow pupil supervisors to supervise more than one pupil? Please explain why or why not.
41. No. However we do believe that there should be a straightforward exemption process from this requirement for (e.g.) employed pupillages, for the reasons given below. The pupil-pupil supervisor dynamic is an important one-to-one learning relationship. It provides confidence of thorough assessment of the pupil and the fair delegation of work/responsibility. Multiple pupils under one supervisor creates the potential for abuse to the detriment of the pupil should one be favoured (either consciously or not) by the supervisor, in the delegation of work or provision of advice/feedback. We would also be concerned that pupil supervisors might be unable to commit sufficient time to providing assistance/feedback to multiple pupils simultaneously. ATOs might also be incentivised to (wrongly) place multiple pupils under the supervision of one supervisor to reduce the demands on other members.
42. We acknowledge the particular need at the employed bar for pupil supervisors to have responsibility for several pupils, owing to the differing nature of training in employed pupillages, which can be given by multiple individuals, some of whom may not be barristers. We therefore consider that there should be a streamlined, but sufficiently robust, exemption process.
Pupil supervisor training
Question 21: Should the BSB prescribe pupil supervisor training outcomes? Please explain why or why not.
43. Yes, if even just at a high-level, to ensure consistency on the content and detail of training.
Question 22: How should the BSB seek assurance that outcomes in pupil supervisor training are being delivered?
44. We believe that consistency is most important factor in the training of pupil supervisors. This might be achieved through the development of a high-level framework. Such a framework ought to include the requirement that trainers are experienced (but recent) pupil supervisors to ensure the quality of training given.
Question 23: Should organisations be required to provide this assurance during the authorisation process? Please explain why or why not.
45. Yes. Plainly if the organisation is not delivering on outcomes it should not be authorised to provide training.
Question 24: Should the provision of pupil supervisor training be opened up to other providers (other than the Inns)? Please explain why or why not.
46. We have no strong view on this question, however the opening up of training to multiple providers might increases risk of inconsistency of quality of training, as identified in Q22 above. External providers would also presumably charge to provide such training. Given this, ATOs might be reluctant to take this option.
Question 25: Should regular refresher training be mandatory for all pupil supervisors? Please explain why or why not.
47. Yes. Doing so ensures best practice, prevents lapsing into bad practices and provides security that “bad” supervisors cannot continue to be pupil supervisors indefinitely.
Question 26: If you answered ‘yes’ in Question 25, how often should it be undertaken (eg every 2, 3 or 5 years)?
48. Five years seems to be an acceptable period without being unduly onerous.
Compulsory training courses during pupillage
Question 27: Should delivery of mandatory courses for pupils be opened up to other training providers? Please explain why or why not, specifically considering the risks and benefits.
49. No. Our anecdotal evidence and personal experience suggests that Inn-provided pupil training courses are generally of the highest quality. They also provide an important opportunity to expand a pupil’s professional network to pupils in other chambers undertaking similar work. Increasing the number of potential providers reduces the possibility and impact of this advantage to pupils.
50. We also consider that external providers would be likely to charge fees to provide such training. These costs would need to be covered by ATOs or the pupils themselves but either way this would be likely to deter pupils/ATOs from taking up this option.
Development of an Authorisation Framework
Question 28: Do you find the language and terminology used in the Authorisation Framework sufficiently clear and accessible? If not, please provide examples of how and where this could be improved.
Question 29: Referring to the relevant sections of the draft Authorisation Framework, are the definitions of flexibility, accessibility, affordability and high standards sufficiently clear? If not, how could they be improved?
Question 30: Do you think we have identified the correct mandatory indicators for flexibility, accessibility, affordability and high standards? If not, what do you think should be added or removed and why?
Question 31: Do you agree with our proposals for recognising transferring qualified lawyers? Please explain why or why not.
54. Yes. Advocacy and professional ethics are areas where qualified solicitors are unlikely to be up to the standard of their peers who trained at the Bar.
Question 32: Do you think there is anything which we have omitted and that we should take into account when considering transitional arrangements?
MTYBA President 2017
MTYBA Vice-President 2017
With assistance from the 2017 MTYBA Committee