RM commented on this topic below, and I asked him to outline his thoughts on it so that I could post them up. Here they are. I do not, myself, think that unfunded pupillage is the way forward, but I am persuadable. Given that one of the country’s most senior Judges recently told me that he did think they were the way forward, there is a debate to be had.
Be nice to RM. He is doing this as a favour. If anyone would like to write the speech for the other side, please email me…
I decided to do the BVC knowing that there was a very good chance that I would never gain a pupillage. I went to a “poor” university and did not obtain the best degree result. The first pupillage rejection letter still hurt though. You may ask why I still did the BVC knowing that it was next to impossible to obtain a pupillage. Very simply, I assessed risks, costs, future options and the potential rewards. I went into this whole process with my eyes wide open as to what the current pupillage selection process is at the Bar. Therefore this post is not meant to be Bar bashing – merely my view on what could be done to improve the Bar and its selection process.
I believe that the best way to improve selection process and as a result to improve the Bar is to increase competition at entry level. Competition generally drives up quality, improves customer focus, increases diversity reduces cost and increases innovation. I am sure that some people will say that the Bar is competitive. Whilst I agree there generally is healthy competition within the profession, I believe that there is a lack of competition at entry, due to the barriers to entry. There are only a certain number of pupillages available and pupillage is the only way to get tenancy.
Access to the Bar is set at the wrong level, and only a select few are able to apply for tenancy. I am quite amused when I hear some fellow students say all they want is a pupillage. I want to be a barrister. It does seem flawed to me that pupillage has become a filter to the Bar. Further I have heard from a number of people that one needs a degree of luck to obtain a pupillage (even SM appears to indicate this in his post). This seems to me a sad acknowledgement of the state of the Bar with regard to recruitment. The Bar should want the best people to become barristers, not the luckiest. I am sure at least 50% (if not more) who obtain pupillage are the best. There is still however a percentage of people who given the chance could be just as good and if not better.
I look at my circumstances – I have not gone to the right university purely due to fate. I dreamt of going to universities such as Oxford but due to family circumstances I was unable to go to university full time. I did not receive the greatest degree results – I cannot blame anyone for this unfortunately. These two facts severely hamper my future at the Bar, regardless of how good I would be as a barrister. I want the opportunity to prove myself. I doubt that I will be the kind of barrister who graces the corridors of the RCJ on a regular basis, but I know I will do a good job within my own limitations. I have some friends on the BVC who have the potential to be very good barristers. There is a very strong chance that none of these talented people will gain a pupillage. It seems a sorry state where people with so much ability, determination and commitment to the Bar may not have the opportunity to prove their abilities during a pupillage. The Bar is losing good people…
I believe that the filter to entry to the Bar should be shifted up to the Tenancy stage. To do this the number of pupillages on offer needs to be doubled (if not more). This will enable a more level playing field and will assist in ensuring that the best people make it through to be barristers. There is also a real possibility that the number of tenancies will increase. During the first few years of tenancy, the barristers who are good will survive: those unable to build their practice will fail. I think Chambers would welcome a far broader choice of candidates for tenancy. I recognise that some chambers already have 4 pupils for every one or two tenancies available. This needs to be spread throughout the Bar.
There is also a positive outcome for the Bar and the pupils who failed to obtain tenancy. Having qualified as a barrister and received invaluable experience will open doors for a pupil who fails to get tenancy, such as job opportunities at the employed bar, overseas, in-house law, business, teaching, and solicitors. Qualified barristers going into these professions would help strengthen the Bar as an organisation, as the skills gained will be used, improved and retained in most cases, and potentially in the future such skills may be imported back into the Bar.
The question of how to fund any system of pupillage is a difficult issue. We all seem to broadly agree that there needs to more pupillages on offer. Funding hampers this.
An obvious starting position is unfunded pupillage (or should this be unfunded first six?). I know that SM is against this proposition. I come from a not so well off family myself. I know what it is like to not have much money. However I would much rather have the opportunity to have an unfunded pupillage than have no pupillage at all. I would not be able to afford an unfunded pupillage, but I am fairly sure I would find a way to make it work. Perhaps a way forward would be for the Bar to negotiate with HSBC to extend the current Bar loan scheme to cover pupillage in addition to the BVC. Perhaps more support from the Inns for people who run into financial difficulty. I know that people will argue that this will put students into even more debt. To counter this I would repeat what I said above about those who fail to get tenancy – they will be further qualified and should be able to slot into fairly high paying jobs. This to me seems the easiest way to increase the number of pupillages on offer.
As to other ways how pupillage could be funded, I am intrigued why the minimum pupillage award is set to £10,000. A way to increase the number of pupillages would be to reduce the minimum pupillage award. My rationale is that a pupillage is in effect vocational training and could be treated like a student loan. I know from my own experience it would cost about £600 a month to survive. The first six months of pupillage could be funded at this level. Thereafter for the second six nothing but expenses such as travelling should be paid by chambers. Any income should come from work done on the second six (or perhaps given an advance by chambers to counter any initial cash flow problems). Furthermore, the Inns/Bar could provide support to pupils on low incomes instead or in addition to providing scholarships for pupils. This would hopefully allow chambers to increase the number of pupils that they have. One of my concerns is that there are chambers who offer huge pupillage awards (£30,000 +). This may not help with levelling the playing fields. Perhaps there should be a maximum award?