BSB moots fresher degree, more flexible BPTC and proper pupillage tests

I’ve not had a lot of time to look at the document yet, but in the light of the dominant theme at the minute being, Ooh, isn’t the BPTC rubbish , with the press very conventionally judging that it is (someone’s been briefing?), I thought I’d emphasise a few other interesting elements to the Bar Standard’s Board’s consultation on the future of Barrister training:

One under noticed point is the future of the academic stage (the prescribed bits of the law degree).  The BSB suggest that undergraduates at, “the end of the academic stage of training …should demonstrate “knowledge and understanding of the basic concepts and principles of public and private law within an institutional, social, theoretical and transnational context”.”[2]  That might be it: no more list of foundation subjects.  Perhaps. Also, they signal a shift towards looking, “more at the outcome, and less at the process of training for barristers.”[3]  In relation to the – potentially significant – relaxation, reduction or reconsideration of the foundation subjects, and in the context of my own interest in professional ethics, it is worth emphasising the observation by the BSB that:

For example, a barrister will not be able to act “in the interests of justice” (paragraph 4.1 of the draft Professional Statement) without knowledge and understanding of theoretical aspects and social dimensions of the law and how these relate to concrete and practical legal contexts and problems.[4]

Also, that acting with independence and integrity, in the interests of justice and with courage, fearlessness and perseverance, are emphasised as matters that should acquired in part during the academic stage.[5]  This seems to suggest that some consideration of professional ethics (the interesting bits in fact) might become a key part of what the BSB expect the academic stage deliver, whilst allowing for a significant reduction in the breadth and depth to which they specify the other foundation subjects.  If this is the case, I would welcome it.

At the Vocational Stage, there is the finding that their focus groups emphasised that:[6]

First and foremost, an ethical understanding and approach need to be foremost during the training, allowing candidates to demonstrate an awareness of the ethical considerations across their work and an ability to recognise and deal with ethical concerns, especially conflicts.

The signalling of conflicts as a key area is a curious one to my mind. I am not sure why this is prioritised above other areas but the signalling of ethics as a priority is an interesting echo of what the LETR researchers found.

At the pupillage stage there is also the rather familiar but important observation that:[7]

Whilst several participants in our focus groups reported examples of good and excellent practice in relation to, for example, pupil mentoring, support and protection, a number conveyed direct knowledge and/ or experience of very poor practice. This included very poor training and supervision or even inappropriate treatment from supervisors. Frequent mention was made of dependence on individual personalities of supervisors for the quality of the learning experience.

In some chambers, pupils are significantly dependent upon their pupil supervisor for validation of the successful completion of pupillage. There is a low rate of reporting of problems in pupillage and a risk that the dependent relationship may mean that the pupil feels he or she has no alternative but to put up with unacceptable behaviour or actions on the part of the pupil supervisor. Additionally there is limited guidance for pupils on how complaints should be handled within chambers and when it might be appropriate to make an external report.

And they suggest:

in the absence of [8] any external quality assurance system for the assessment process in pupillage, a chambers which, for example, fails to offer appropriately high quality training may equally fail to assess rigorously its pupils, and may even be biased towards passing them. This could result in pupils being authorised to practise despite having received inadequate training, putting the public at risk. Further, public perceptions about such a system are likely to be negative and to diminish public confidence in barristers.

This is quite a critique.  It could well have been headed, Pupillage – it’s a it ropey.

As with other elements of the consultation whilst general menus of options are laid out for discussion there is –given the early stage of the consultation- little detail on what is likely to happen but an independent assessment of preparedness to practice at the end of pupillage is apparently one option:

We currently have a predominantly administrative and arguably unduly bureaucratic role in relation to pupillage and it is not clear what value that adds to our regulatory role. For example, mere receipt of detailed checklists without any oversight of the quality of what the checklists represent cannot give the public confidence that standards are being consistently met or that risks in the training will be identified or addressed.

Some of our focus group participants expressed a desire to see us increase our efforts to maintain consistent standards and to support pupils, and suggested there should be independent assessment of preparedness to practise at the end of pupillage, carried out by an external body.

They also suggested that we need to take a greater role in quality assurance of PTOs and training providers within pupillage, and to make sure that “whistleblowing” and complaints handling were handled seriously and sensitively in the pupillage context.

Of course it is much easier to beat the BPTC providers over the head than it will be to change pupillage, especially when they are perceived (sometimes wrongly I suspect) to be making buckets of cash our of BPTC students (the tight regulation of the BTC makes it hard to make money for at least some institutions I think).  Furthermore, the costs of any post-pupillage assessment will fall on either chambers, pupils or a combination of the two: here there is a risk that the (understandable) concerns about the shrinking pupillage numbers and welfare of poorer BPTC students will drown out the larger question of whether professional education delivers competent practitioners.  There is the interesting suggestion that much greater flexibility in pupillage equivalent training might be on the agenda too.

The document is both interesting and perhaps a little long in coming. The LETR and its now prolonged post-research gestation with the professional regulators is not a model of speed; but I would not wish to dismiss the complexity of the issues and the diversity of stakeholders to be brought along too lightly either.  With quite a long lead in until proposals are likely to be implemented, perhaps the proposal that the BSB steps back from it’s current levels of proscription and allows quite a bit more flexibility where it can is the one which will ultimately prove most important.  It’s also a document which leaves a lot to play for: the issues are thoughtfully but widely drawn – an opportunity to engage, panic indignantly or switch off for another year until more detailed proposals emerge.  It’s not a long document. I encourage engagement.

….

[1] Future Bar Training: Consultation on the Future of Training for the Bar:  Academic, Vocational and Professional  Stages of Training , July 2015

[2] Id. 4

[3] Id. 9

[4] Id. 15

[5] Id. 13

[6] Id. 20.

[7] Id. 58

[8] Id. 61

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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