Are our future barristers getting the training they need?

Are our future barristers getting the training they need?

s large numbers of students continue to pursue a career at the bar, Diana Bentley speaks to those at the forefront of the education of barristers about whether the current approach is appropriate – both for the students and the wider profession.

The modern barrister

What skills does the modern barrister need? For the solicitors selecting them, it’s a combination of talents. ‘They must be very knowledgable about the law but other qualities are extremely important too,’ says Nicholas Lakeland, head of the employment and pensions team at London firm, Silverman Sherliker LLP. ‘Good cross-examination comes from an understanding of people and an intuition which is not always found in overly-academic barristers. I also look for common sense, tenacity and a capacity for lateral thinking.’

So is the training providing the barristers that solicitors need?

The training landscape

Those responsible for educating barristers are keenly aware that they need to equip their charges with the necessary range of talents. But they clearly understand too that while training must continue to be kept thorough and relevant to the demands of current practice, factors such as training costs must not act as a barrier to entry into the profession. With these things in mind, early last year, the Bar Standards Board (BSB), embarked on an initiative called Future Bar Training to produce a new blueprint for education and training for the bar. A series of consultations – which are ongoing – are providing the BSB with the input it needs to decide on any necessary reforms.

All three phases of barristers’ training are being considered – the academic degree stage which provides a core knowledge of the law, the practical training course (currently the Bar Professional Training Course (BPTC)), and the year of pupillage in barristers chambers which provides hands-on experience. A summary of the results of the initial responses to its first consultation was published in February 2016. Most respondents believed the BSB could consider alternative methods of training for the academic stage while heavily endorsing the need for the pupillage stage. But the responses to the vocational stage were mixed.

Currently the BSB is still considering this aspect of training and a further consultation will be held to help determine what the preferred approaches to reform should be. Presently there is also a consultation on the Professional Statement that sets out what skills barristers should possess on the first day on which they gain a full practicing certificate, focusing on threshold standards and competences, responses to which can be made up until 5 June 2016.

Dr Simon Thornton-Wood, director of education and training at the BSB reports: ‘We’re now consulting on what the standards of training should be and what skills barristers should have when they’re first permitted to practise. We’ve tried to focus on the most important things. We’re consulting with all major stakeholders but it’s a public consultation too and we’re keen for consumer groups to understand what we expect barristers to be able to do too.’ What needs careful thought is exactly how radical any proposals for change will be says Thornton-Wood. ‘For all the faults of the system, it’s still good and has been built up over time so we’re cautious about making changes to it. We want to concentrate on changing things that are too inflexible and costly.’

Challenges in vocational training

The BPTC, which acts as the bridge between academic study and the start of life as a pupil barrister, has been under close scrutiny. ‘The current BPTC has a clearly defined role in developing students as practical, professional lawyers,’ says Professor Stuart Sime, BPTC course director of City Law School. ‘It provides students with a sound foundation in a range of subjects like civil and criminal procedure and evidence. Its purpose is to train students in numerous “soft” skills essential for professional life too in the obvious areas of advocacy, drafting and advising. But one of the areas being considered currently by the BSB is where various skills and subjects are best addressed – in undergraduate study, in the BPTC, in pupillage or later in continuing professional development courses. This is potentially a massive topic and has been addressed previously over the years by reviews of legal training.’

The response to the initial consultation showed that although most respondents thought some form of vocational training was necessary, not all believed it should be in the form of the BPTC with some suggesting it could be integrated with the academic and professional stages of training. What is emerging clearly in this part of the consultation, however, is the issue of the high cost of training. Simon Thornton-Wood notes: ‘Our concern is that over time the BPTC has got very expensive—especially in London. Professional skills training is intense and involves people in small groups under close supervision so that makes for significant cost. Many students get funding from the Inns of Court, course providers and others. But we’re keen to look at whether the cost is a market effect we should be concerned about or is a result of any unnecessary stipulations we have. We’re therefore looking at whether some of the cost could be avoided.’

Fees for the BPTC can run from £14,000 to around £18,000 and students also usually must meet living costs too. ‘The cost – especially this practical training stage – is very high,’ comments James Wakefield, director of the Council of the Inns of Court (COIC). While the COIC offers about £5m in scholarships annually, he says many students fail to get funding from it or other sources. In response to the consultations, the COIC has suggested the BPTC be split into two sections. The knowledge-based subjects would be grouped in the first. ‘These tend to be the subjects students fail,’ Wakefield says. ‘Our idea is to allow students to study these first and from anywhere in the world and that this section must be passed before students proceed to the next skills-based segment. This wouldn’t be a magic bullet but could reduce costs and save those students who are going to fail some time.’ Wakefield admits that some have concerns about this model. ‘There are advantages in integrating the knowledge and skill-based subjects but it’s a suggestion for reducing cost and risk.’

Training providers

Training is available from BPTC providers who say they are very selective about their intake. In this current academic year, City Law School has 345 full-time and 24 part-time students. ‘We’ve been deliberately recruiting to these numbers for some years,’ says Stuart Sime who says that the school has over 1,000 applications annually. Nottingham Law School (NLS) receives around 400 first round applications a year but enrols only around 75-76% of which have a 2.1 or better in the last two years says Helen Hudson, head of post graduate professional courses. ‘We’ve also recently converted our BPTC into a LLM by introducing other features, which will be delivered from September 2016,’ she says. The new Practice in Law Module to be introduced in the new LLM course, will, she notes, add to the practice value of the NLS’s BPTC.

These providers say they also diligently monitor the effectiveness of the courses. Yet the failure rate of the course is relatively high–entering the bar remains competitive. In the 2013/14 year (the last year for which figures have been released), 1,456 people were admitted to the Bar in England and Wales while many more apparently wanted to join its ranks. Figures released by the BSB on 5 May 2015, indicate that 4,760 students started the BPTC between 2012 and 2014 and 72% have passed to date. (More may do so on re-sits and on part-time courses).

This is part of what the COIC’s James Wakefield says is the risk factor of barristers’ training. ‘About 20% of students fail the BPTC and of those who pass, only about one third get a pupillage.’ The BSB’s recent statistics also show that 35% of UK/EU domiciled graduates enrolled on the BPTC in 2011–13 gained pupillage (47% of whom were women). ‘We’re worried that many able students will be deterred by the risk and costs involved in trying to become a barrister,’ says Wakefield – a view obviously shared by the BSB which is keen to promote diversity in the profession.

The Professional Statement

A major focus currently is the review of the Professional Statement which covers a barrister’s technical legal characteristics, personal values and standards, management of practice and the ability to work with others. ‘This Statement looks beyond legal technical competence because increasingly, the ways the bar works is complicated and barristers need to continually adapt and develop behavioural skills and be able to manage a practice,’ says the BSB’s Simon Thornton-Wood. ‘Although some barristers, for example, are in chambers where everything is done for them they should still understand how to manage their own practice and how to work with other people and cultures and professions. The baseline needs to be brought up—everyone understands that we all need to act in a way that brings credit to the bar.’ The Professional Statement, the BSB hopes, will be a valuable point of reference for those providing training.

Others too are hoping it will set out a clearer view of what barristers should be able to do. Alex Cisneros of the Bar Council says: ‘We’d like to see this Statement on threshold skills be more prescriptive and tell people what is really expected from a barrister on day one of their career. It states, for instance, that barristers need good communication skills. We’d like some clarity on what this means. If it states that barristers should possess drafting skills—in relation to what documents? We think the Professional Statement should be clearer and be more “hands on”.’

Other issues

Plenty of other issues will be under scrutiny including direct access training – presently delivered after completion of the BPTC. ‘We ask barristers to go through special further training on this,’ Simon Thornton-Wood reports. ‘But this is something that’s open to review for the future and there’s a discussion to be had on whether this will become a more substantial part of training. We need to see how a revised continuing professional development scheme plays out and see what impact that has on training for direct access.’

The BSB anticipates that the earliest a new system of training could begin to be put into practice would be from autumn 2017 on. For now, the BSB is receiving ideas in response to its consultations. ‘Those involved include, barristers, the Inns of Court and providers and none of these groups is backwards in coming forwards,’ comments Simon Thornton-Wood. ‘They’re coming up with new ideas on how training can be delivered. In the coming weeks and months we’ll address their particular concerns and consider if we can accommodate their proposals.’

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL.

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