Life at the Bar · The BVC · The Future

A Plan For Legal Education

snark-barristers-dream1I have been thinking about this for some time (whether I have got it right is another matter).

The BVC doesn’t work. It costs far too much and it takes on too many people who have no chance of succeeding, thus depriving them of a lot of money they will never recoup. It teaches far too mechanistically and at a level which produces very little of value to the student. All pupil supervisors are familiar with the process of starting again or, even worse, ensuring that pupils unlearn some of the ‘skills’ they have been taught.

Dump it.

Abolish funded pupillage as a necessity and replace it by selection on merit, supplemented by scholarships. Make two different categories of scholarships; one based on need and one on academic ability. Allow people to compete for both. Put the money in the pot labelled ‘need’. The other shcolarships will attract the prestige.

The worry about unfinded pupillage is that it puts middle-class applicants with parental or other support in the box seat. This is a bad thing. Prevent it by making Chambers publish their scoring systems for pupillage, subject them to random pupillage interview inspections, insist that discussions as to selection are fully minuted and subject the pupils to competitive examination (see below) leading to a judgment about what added value Chambers is putting in. If Chambers are not adding sufficient value, or are not embracing diversity, discipline and publish the names of defaulters. Supervisors are supposed to teach. If they do not, then they should not be protected.

Pupillage should start in October and April. Pupils should attend the BVC for a month prior to starting. There they should be taught the basics of drafting, opinion writing, ethics and nothing else. They should be taught by practitioners or others who are subject to random inspection with the results being published. Barristers are subject to exactly the same regime (read the law reports). Why should those teaching barristers be any different?

There should then be 6 months pupillage during which the supervisor and Chambers should provide experience in drafting, mock-trials/pleas/applications. Ethics should be reinforced, with practical difficulties being built in to the training. There should be a programme of further education (as all Barristers now undertake such a programme) which concentrates on substantive subjects identified by the pupil and the supervisor, with a view to getting the pupil up to speed on Chamber’s work. At the end of that period the pupillage should continue only if the supervisor and the head or deputy head of chambers are prepared to jointly sign a certificate of competence. To prevent this being the charade it can currently be, the signing of the certificate should be an acceptance of personal responsibility for the pupil for the next 18 months in terms of any further training identified by the BSB or a Judge. There should be an appeal system to prevent abuse. This can run via the Complaints Committee of the BSB.

Pupils should then take a further month to develop court craft, conference skills, diversity training and drafting techniques at the BVC. These subjects would be taught by practitioners and would fit around their practices. Judges would accomodate days out of Court. Every Chambers who wished to take a pupil would have to ensure that a fair proportion of its membership went on this rota. The rota would be quality controlled. Chambers who could not provide people of sufficient quality would not be allowed to take pupils. Nor (and this is the sting in the tail) would they be permitted to take further tenants of below, say, 5 years call. This would deprive them of a sufficiently important income stream to ensure they took training seriously. Judges would be expected to assist and their participation would count as a sitting day.

Then back for six months more pupillage as presently, with added training and an agreed plan to develop the pupil’s skills. Then a competitive exam leading to two scores – an overall one as at present, and a score reflecting progress made in the second six months, on which Chambers would be judged.  Then tenancy. Of course, a tenancy could not be guaranteed, but Chambers would get a reduced or eliminated payback if pupils were not kept on. That might get rid of the current unfair system where many pupils are taken on to compete with each other.

How would this be paid for?

Each pupil would pay £10,000. They would thus save money, compared to the current arrangements. The money would be paid over 2 years at the Bar by deduction from their earnings. Their Chambers would inject that sum up front in order to pay for the teaching required. If the Chambers taught the pupil properly then the money paid by the pupil would go back to Chambers. If they did not, then the money would go into a general fund, from which proper training would be paid for. Chambers would be deducted money or fined for breaching diversity policies, not applying fair selection procedures, failing to train properly etc.

Pupils who needed support before they earned for themselves would be entitled to an interest free loan from Chambers, set at a rate which provided basic accomodation, food and travel. That loan would be repayable within 5 years and would be capped at a maximum (which might encourage some sets to apply diversity rather more enthusiastically than at the moment and encourage applicants to focus on things other than the size of the pupillage award), but could be taken as and when the pupil wished. Chambers could afford this because they would not spend any money on pupils, save the cost of lending, providing they gave proper supervision. They could thus afford to pay a small sum per annum (say half the current minimum award) to a central pot which would be sued to ensure that the system was affordable. The BVC as it currently is would end. Pupils would be taught in London, Manchester, Leeds (it’s my plan, alright?), Cardiff/Bristol and Birmingham. That would mean that very small premises were required and it is possible that an arrangement could be made to utilise court buildings – many courts don’t sit every day.

The profession would be able to teach properly. Chambers which were good at teaching would attract the most able applicants. Those bad at teaching would be discovered, and pupils and junior tenants protected from them. Pupils would save money. So would the profession. People without hope would not pay out.

Thoughts welcome.

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22 thoughts on “A Plan For Legal Education

  1. One theme that I pick up regulary from BVC bloggers is that the tutors on the BVC aren’t that good, often being refered to as failed practitioners. How true that is, I currently don’t know, but surely it would be better to be taught by someone still currently in practice?

    With Kaplan Law school now opening up in London and BPP opening with another school in Leeds, it really does seem like a mass money making market.

    I am also always hearing horror stories of how these places don’t give a toss about their students and only want to make money. (Dare I mention BPP as the alleged defendant of these accusations) Why one place in London can charge £16k and another £12k is beyond me.

    I would like to see the system abolished, but as I currently have little to no knowledge of what its like to be a BVCer my comments are just purely speculative.

    Publishing criteria for pupillage is also a good idea, however would this then lead to a standardisation of all aspirant pupils? Most people nowadays have at least a couple of mini’s and some pro bono work, exact specification may lead to people ticking boxes instead of just being an outstanding candidate in their own right.

    Sorry to nit pick but – 4th paragraph, unfinded or unfunded?

    When are you running for Chairman of the Bar then Mr Myerson?

  2. Not too sure about this model if I’m honest. To place the education of a pupil almost entirely in the hands of Chambers could spell disaster. For instance, what if a particular barrister is a superb advocate, but not a good teacher? The pupil is discarded as being unsuitable for a career at the Bar and it may not transpire for some years to come that it was the barrister (or Chambers) who was a poor teacher, rather than the pupil being a poor scholar, by which time many pupils have come and gone, each being told that they do not have the skills required for a career as a barrister.

    There are too many stories of pupils being taken on at Chambers and basically doing nothing of any interest or value or educational merit, but the pupil is not in a position to complain for fear of upsetting the Powers That Be and dashing their chances of tenancy. The term ‘Pupil Master’ perhaps best describes the power that Pupil Supervisors currently hold over their pupils, to afford them even more power by virtue of the power to award a BVC type qualification (or indeed to withhold it) is to my mind, a step too far.

    Perhaps a day release programme would work? It is a much tested model used in many forms of apprenticeships and would help to ensure that pupils are getting the practical grounding required in Chambers, whilst topping up academic skills at the provider. However, I do believe that some sort of provider should be responsible for the actual BVC qualification rather than Chambers.

    What about the Inns? Perhaps the answer lies in restoring more of the educational elements of BVC back to the Inns? The sheer diversity of barrister members at each Inn would ensure that pupils could choose to learn a particular skill with a particular barrister and be free to chop and change should they not ‘bond’ with a particular tutor/barrister. Perhaps this pick and mix type of education would help to improve standards all around?

    Let’s face it, the current Inn dining ritual for BVC students, whilst being quaint and traditional, is not really very helpful and for people like me, it’s an expensive pain that requires a 250 mile round trip in order to have a meal and get a qualifying point. I’d much rather have more in the way of qualifying points for regular educational events, not just the 6 monthly, over subscribed advocacy weekends that are currently available (and clash with my study weekends anyway).

    Lastly, what about Legal Research? To date, it is one of the few skills that I feel is of benefit to BVCers, but it seems that the Wood Report has recommended it be scrapped from BVC. It is such an important skill that needs to be taught pre-pupillage so that a new pupil going into Chambers is able to carry out research from the word go, rather than spending half of their first six grappling with the basics of Halsbury’s and Westlaw etc.

    Interesting article, I’m sure that there will be many other BVC students ready to offer their opinion of BVC. Myself, I’ll wait until I’ve finished BVC before saying whether it is a good educational system or not.

  3. Agreed, The BVC doesn’t work. I know I am merely reiterating common sentiment, but I dont believe I was afforded the opportunity whilst undertaking the course, so I shall do so here with respect to my own experiences .

    My personal experience is one of an extraordinarily poorly taught and expensive course which offers very poor pastoral support and persists in encouraging very poor students to throw good money after bad, frequently to the very end of the course, when the student fails, and is left bewilderedly wondering what went wrong. Favouritism abounded, and groups seemed to be ‘streamed’ according to perceived abilities; consequently educational experiences within ones own cohort were staggeringly different, with some students, quite literally, being left to fend for themselves. I look back across the materials provided to me on the course, and now know that they will never ever be of practical use( even my practitioners texts are redundant, being so grossely out of date) – even the Bar Manuals were occasionally very poor and unhelpful.

    The quality of the feedback received from tutors was erratic, and the whole idea of peer reviewed small group work just didn’t work, because NO-ONE was EVER prepared to be critically honest. It is plain that the course has become an income generator at the expense of shattered dreams –for a dream, in many cases, is all that a career at the bar ever will be.

    Consequently, I am personally in favour of reducing, quite substantially, the numbers of providers available, and making those providers left work a bit harder than they claim to be doing already, for the right to run the course. The chief concern should not be related in any way to providing choice, but to providing quality, and this begins with recruitment. The Bar Aptitude Test should not be one that can be taken numerous times; 3 strikes, as far as I am concerned, and you’re out. Following the test, providers should automatically interview applicants following criteria set by the Bar Standards Board; giving credence to equality and diversity (this happens at many quality universities, why should it not be the same form of rigorous selection process for the BVC?). The standard of actual teaching should be more closely scrutinised, materials taught agreed upon centrally and validation of the provider’s ability to deliver a quality education should take place yearly.

    All students should be issued with a core document ( not dissimilar to a document I was subjected to when training to become an ITU Nurse, called a Bondi Document, after its creator) setting out the range of skills and competencies expected by the end of the course; this document MUST be completed successfully in tandem with satisfactory acquisition of core skills; the core skills should be assessed on at least three separate occasions, formatively, in an interim fashion, and then summatively. No student should be allowed to progress to a summative assessment if they have not improved in the gap between the formative and interim stages. ALL students should be reviewed regularly – at the very LEAST monthly , for the duration of the course, to determine their progress.

    Chambers should become more actively involved with providers, and have substantial input into the training of students, particularly in the last half of the course when pupillage is imminent and with regard to summative assessment in the practical skills; practitioners would be remunerated at a standard rate for their participation. If chambers see their pupils as an investment for the future, I am sure they would be keen on this point.

    These are only thoughts, and they probably lack some degree of cohesiveness, but the system as it is cannot be allowed to continue out of hand. Tighter regulation and tighter selection is needed – if only to prevent students like NoChanceWhatsoever failing the course not once, but TWICE, at a total cost of £20,000 (No Scholarship).

  4. The failed practitioner angle does have some truth but, it can be misleading. Some of the tutors admit that they are only teaching because they cannot make ends meet (hardly, in itself, a great advert to aspirants). But their commercial success or otherwise in practice, is strictly, of no concern to students. I suspect that some of the tutors are highly competent in practice, and know their subject extremely well indeed but, being at the family or criminal bars, simply cannot survive financially. That, however, is no good reason why, through no fault of the students, they have to be lumbered with people who cannot teach or are inadequately resourced for the purpose . Curiously, given the supposed appeal of being taught by practitioners, it is the proper academics who tend to be better received by the students and, indeed, some of those tutors are very good indeed even when being asked to cover huge amounts of ground in very limited class time.

    The quality of the teaching, however, is not, in itself, where the core of the problem lies. It is merely symptomatic of a wider issue, being the quality of the delivery of the course as a whole.

    Through what I conclude must be the near total mismanagement of the issue by the BC/BSB over the past decade, the vocational training has become run by the providers for the primary benefit of the providers; the aspirants and the Bar being merely bit part players.

    The providers know they can offer up tat because they will not be called to account for the quality of the provision nor, most importantly for a vocational course, the post graduation workplace success of their students.

    A system whereby the “book” skills are delivered as a shorter form BVC by outside providers would have appeal, and especially if the provision was externally tested with the provider being required, at their own cost, to put failed students through resits. That would dissuade the providers from offering places to the no-hopers, as is patently the case currently, and a shorter course would help with the diversity angle because it would be more affordable to those from less comfortable backgrounds.

    The rest of the skills should be made the responsibility of pupil supervisors and either delivered by them or the Inns’ trainers. The education events offered to students by Inner (the Inn of choice for discerning students) is faultless in my experience.

  5. Before I began the BVC, I read a comment somewhere about it being like learning to drive. Of little practical use once passed, but it gets you to a point where you know how to at least drive reasonably safely.

    Of course it makes money for the institutions, and if it didn’t they wouldn’t run the course. But in a field where there are more potential students than spaces, they can charge whatever the market will bear.

    The quality of teaching I have received at CofL has been excellent, and I wouldn’t view any of the lecturers as failed at anything. There are gripes and moans about the course, but nobody ever said that being a barrister was easy. Its hard work, and if you don’t put the work in, then don’t expect miracles, or to pass. I am regularly astounded at the number of fellow students that do not prepare for lessons, or do the set homework.

    If necessary, I could complain about every single educational institute I have ever attended. Text book teaching is nothing like practical experience. In the army I was taught how to defuse a landmine. Reading the text book is one thing, but you try pulling a detonator out of a live mine and see that real life is different to text books. (Of course, the real LIFE aspect may not last much longer if you haven’t read the book!)

    I hope that the BVC will teach me skills which I will use at some point in my life, will shape me into something worthwhile, but that should I ever get a pupillage, the unlucky chambers that takes me on will show me how to do the specific job they want me to do, properly and effectively. The BVC will hopefully get me there.

    Good or bad, efficient or not, its a tick in the box, and just like a three point turn without hitting the kerb, now I have passed my test, pedestrians beware because my 7 point turn cutting across the pavement is what I do best.

    Swizz

  6. Having just come from a talk with James Wakefield who will be the new head of Kaplan Law School when it arrives in London it seems that things are changing a bit and that it will get harder with the bar aptitude test.. etc that and apparently Kaplan will interview those going onto the BVC of course this weeds out those that were doomed to fail anyway, but still doesnt mean that the course will teach students adequate skills to go to the bar..

  7. I dont think the Bar Aptitude Test will solve anything, unless the Bar Standards Board/Bar Council curtail the number of attempts made at it, and in any event, are there measures in place to ensure there is no sharp practice when the test is actually taken?-

  8. Current plans for the bar aptitude test are that you can only take it an unlimited amount of times, but only twice in a year… so I’m sure that will weed out some people. Still no definite guide as to what shall be the pass rate.

    What is worrying is that it will be somethign similiar to the LNAT, critical thinking and all that marlarky, something I cannot do very well!

  9. I still think BAT is capable of bieng open to sharp practice, and that it should be undertaken in controlled conditions, just like LNAT.Twice a year for 5 years ( until ones undergraduate degree becomes’ stale’) would not in any way deter some who absolutely believe they have the B- Factor, when they simply dont ( as with NoChanceWhatSoEver)

  10. Good controversial stuff Simon – but, as you know my view that something fairly dramatic needs to be done about rising costs and structural issues with the BVC course I am all in favour of moving bar education more towards being taught by the profession and a degree of integration between pupillage and formal ‘classroom’ training.

    I have emailed to see if you have time for a podcast.

  11. It will be interesting to see what the assessment test covers.

    A decent command of the English language will cut out those well paying foreign students, so the institutions won’t like that very much.

    Cut out the students that have no common sense, oh dear, what will the institutions do?

    Cut out those that cannot speak in front of the class without fainting.

    Cut out those that cannot read a set of papers and spot any issues.

    Looks to me that if they are not careful, the BVC will no longer be a viable course. Out of every 50 students I have seen, probably 30 amaze me that they are there at all. All clearly intelligent because you can’t pass a law degree without having some academic ability, but they just do not cut the mustard.

    Maybe they will increase the fees to compensate for the lack of viable students. Or dumb down the test.

    I do think that the Bar needs to exert a little more control over the process though. I like the idea of more participation by Chambers. Although will that just shifts the problem to them. They will take on 5 pupils when they only have 2 positions, because as sure as eggs is egss, some of them will not make the grade.

    Anyway, back to my glitter glue and sticking

    Swizz

  12. … Much as I hate to say it, but the mininum degree entry standard should be 2:1, unless EXCEPTIONAL Extenuating circumstances apply. Again I can only speak from my own experience, but those admitted in my cohort with a 2:2 struggled almost from the word go within my small group, one dropped out before he was actually failed ( only to go off and do the same thing again at another provider) and one failed in entirety.

    How about cutting out those who do absolutely NO work and contribute NOTHING to small group sessions, but slide along idly, sponging off everyone else?

  13. This post is the most complicated thing I have ever read. It makes the Taxation of Chargeable Gains Act* look like a child’s first book of farmyard animals in comparison.

    Though my conservative temperament usually makes me suspicious of changing the status quo**, in this case I would go even further than Simon and side with those who would introduce a “you must qualify as a solicitor before you can practice as a barrister” rule. This is inspired by my observations of BVC students who failed to get pupillage and later turned to paralegalling with an eye to qualification as solicitors: very clever, very hardworking, but it was often hard to tell why they wanted to be barristers rather than solicitors other than having a vague fancy for wigs and stripey suits.

    The ‘solicitor first’ system would reflect how soliciting is the rule and barristering the exception; allow the perplexed to make a more considered decision between the professions; provide a cushion for those unable to get pupillage (as under this system they would be qualified solicitors anyway) and would probably be more socially just – at least the £15,000 gamble would not be quite the same.

    *actually, on the subject of tax, although I can’t be sure I have entirely understood Simon’s post would I be right in thinking his system would have income tax advantages inasmuch that the existing pupillage ‘salary’ (the minimum award of which exceeds the yearly tax-free allowance) would be replaced by a loan and, although this would be caught by the taxation on employee perks by virtue of being interest-free, the amount of tax due (on the effectively employer-paid interest
    payments) would fall within the tax-free allowance?

    **though I like to think the ‘solicitor first’ system has shades of the pre-English Civil War system of barristers studying for seven years before being allowed to practice (Simon I got this fact from Cecil’s Brief to Counsel which I bought on your recommendation – good stuff) as well as a hint of Satan’s temptation of Christ in the desert for good measure (perhaps the barrister training could take place in a desert for added symbolism).

  14. Richard, your * actually analysis is, not correct. Pupil barristers are not employed, but have “DVI” status for the first six and “DI” status thereafter. As such, the code for employer loans is not in point.

    Notwithstanding, and going off on a tangent, I like the idea of people being employed first off, whether in a solicitor context or otherwise. Being self employed always comes with the romantic connotations of being your own boss, and doing your own thing etc., but these tend to belong only to those that have never been in that position. For those of that have, the absence of sick pay, pension provision and manifold other issues tend to counter the perceived attractions. In professional services, you never really work for yourself in any event; you work for your clients. I am not convinced that it is wise to encourage people as young as 22 to commit to self employment when they might not be suitably equipped to deal with the downsides. Most other professions keep their young away from self employment until at least their late 20s, in theory, and usually into their 30s in practice. Aside from the advantages this affords to the entrants to those professions, it does also place the emphasis for training and continued professional development on the senior members of the professions. My perception of the medical profession is that it is particuarly good on this, with qualified doctors at even senior registrar level remaining under supervision until they obtain a consultancy post.

    I can see many advantages to the Bar adopting a similar system, rather than the current half baked system which does the Bar little credit. If new entrants had to be formal employees of their chambers for, say, 5 years post call, and at a proper living wage broadly equivalent to their opposite numbers in solicitor firms, it would, I venture, lead to a very rapid shake up of the vocational training and the pupillage application process, neither of which seem to have much going for them. It might also help to remove the cheap labour afforded by pupils and junior tenants and, in turn, cause the sionor members of the Bar to stop taking such a lame arse approach to the goverment when it comes to the legal aid budget cuts etc.

  15. Simon,

    I think your proposal is spot on. Quite close to my own ideas about how to improve the course (currently on it).

    I think one should definitely have to have pupillage before starting, funding should be taken care of between Inns and Chambers and it should involve an initial classroom crash course in the basics, followed by time in Chambers actually learning on the job, with day release type learning back in the classrooms throughout the year. this would be a-much fairer and open
    and b-prepare one to be a junior barrister much better.

    I like your additional aspect, which is to penalise sets that recruit a pupil and fail to take them on without good reason. Quite right.

    Problem is it will never happen because the Bar Coucil won’t upse thte providers and their profits. They don’t seem to realise how many people they are driving to unnecessary penury and how much they are devaluing the brand of ‘barrister’ presently by creating four times as many ‘barristers’ as the market requires. If you tried to explain our system to any other provider of professional training, they would not believe it. Can you imagine trainging four times as many doctors/Army officers/dentists/teachers as necessary? We are in danger of making ourselves into a laughing stock.

  16. I agree that the BVC doesn’t work. Certainly, it caters to the lowest common denominator which is incredibly frustrating and costs too much when you consider what you get- both in respect of the price tag (circa 14k) and the time involved and that opportunity cost.

    I may be repeating some comments above, I’ve only skimmed them, but:

    – I don’t think the ‘failed practitioner’ argument is fair. My tutors have been good on the whole. For the purposes of the BVC as it is, which seems to be aimed at producing non-negligent barristers, rather than GOOD barristers, they have been fine. Most have seemed frustrated with the course themselves.

    – Time, cost, and usefulness- I have learned far more in one FRU case and experience in firms than on the BVC course.

    – Legal research – I feel you should know how to do this after a law degree. Understanding sources of law and the hierarchy of sources is Law 101 in most universities. In practice, you would seek assistance from a colleague if you had a problem, and so the BVC model of assessment is not terribly helpful.

    – If Chambers are expected to continue training (as they are today) then it is right that they should have a more vested interest in training from the beginning. If money can be saved, equality of opportunity can be promoted, and each player (aspirants, Chambers, the clients ultimately) can get more out of the bargain, that can only be a good thing.

    There are a lot of good, positive points in your suggested model. I do not understand why the Bar Council persists in making tiny, piecemeal changes to the BVC without overhauling the entire thing.

  17. I agree that reform is necessary. There are too many unqualified candidates applying to the BVC.

    I am less convinced about some of the specifics.

    For instance, I consider that I improved more as a result of the advocacy training that I received on the BVC than either via circuit or the Inn. On the BVC there was more feedback, better planning and greater opportunity to analyse your own performance.

  18. Interestingly SM’s idea is not very different from what happens in most Australian jurisdictions.

    In New South Wales everyone has to be admitted as a solicitor first, and almost nobody goes to the Bar immediately afterwards. I think on average people work as solicitors for 3-8 years before even thinking of going to the Bar.

    The applicant then has to pass three Bar examinations (procedure, evidence and ethics), before taking a month-long Bar course (mostly advocacy) taught by very senior counsel and judges.

    Chambers take on readers for one year, during which competent readers are encouraged to find their own work and to go to their tutors for guidance only. The chambers do not pay anything to readers.

    It’s very much sink or swim.

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