The Chairman of the Bar has spoken eloquently of the need to restrain the number of students seduced onto the Bar Professional Training Course. He has received many plaudits for speaking out, but I believe he may have shot himself in the foot. Before I explain why, let me quote from the text of his speech at length.
Each year, about 1,800 law students undertake the Bar exams and each year competition for pupillages intensifies as last year’s unsuccessful applicants vie for an ever decreasing number of pupillages with the current year’s output of newly called barristers. Over 4,000 applicants are now routinely competing for about 460 places. On one view, this is extremely good news for the Bar because the quality of intake in pupillages is quite extraordinarily high. The genetic makeup of our young practitioners is alpha class, but to my mind the statistics reveal both a moral and an economic problem which we have neither grappled with, nor properly understood.
Morally, I have real qualms about a system of education which encourages universities to educate more and more law students, because a law student can be generated at virtually zero marginal cost. These students leave university with substantial debts, often exceeding £30,000. They then invest further in professional training only to find that the door into the profession is very small and the waiting room massively overcrowded.
It is true that some students take the exams knowing that the chance of finding a place may be remote and/or that the qualification will be usable elsewhere, but it is clear to me from my many discussions with students, that many are seduced into a long, tortuous and expensive qualification processes where there is no realistic prospect of them ever being absorbed into the profession. With student debt on the rise and likely to rise further if the Government lifts the lid on university fees, surely we have a moral responsibility not to encourage those students who, on any realistic view, have no prospect of ever succeeding?
Why then, might I suggest that he has shot himself and his colleagues in the foot?
It is not that he has got some of his facts wrong, even though I cannot think of any approach to either law degrees or the BPTC where any law student is educated at or close to zero marginal cost. This is a remark which shows how properly he has not understood the problem which he admits not properly understanding, but that is not the point I want to dwell on today. My concern is in the admission that, “the intake in pupillages is quite extraordinarily high”. A strange thing to have concerns about, one might reasonably think, but it seems to me it contains an implicit admission of something very important. The number of pupillages excludes from the Bar candidates who are of sufficient quality to practice at the Bar. That is it excludes those who are (simply) good enough and (more importantly) those who are ‘very good’ but not ‘extraordinary’. Unless it can be argued that it is necessary in the public interest that the Bar only admit those of quite extraordinary talent, the Chairman of the Bar has admitted, I would argue, that pupillage constitutes an unreasonable bar on fair competition. From the public interest perspective, the Bar should admit more pupils (and face the reduction in the earnings that will ensue). Could they do so?
One approach would be to do away with pupillage. I would be deeply uncomfortable with such an approach: I believe we do need on the job training for would be lawyers. There is more of an argument in favour of abandoning pupillage where the profession is (broadly) referral only but that is not a position which will not hold much longer. Another approach was suggested to me last night. Chambers supporting one pupillage at (say) £50,000 could quite easily support two pupillages at (say) £25,000. I put to my dinner companion that Chambers needed to compete with City firms for those students and so needed to offer high sums. He thought not: students who want to be barristers, he thought, were only interested in becoming barristers and would take a pupillage at £25,000 over a training contract at twice that. I had some doubts about that but the BPTC numbers and Mr Green’s comment suggest he is right. Where the amount spent on pupillages cannot be subdivided in this way, it could be argued, the profession should dig more deeply into its pockets if it is to protect its monopoly. Rather than trying to shrink the size of the waiting room, perhaps the Bar needs to think seriously about increasing the size of the door.