In the Media

The Bar: Waiving, not drowning

PUBLISHED June 8, 2006

Despite efforts to widen access to the Bar, pupillage numbers are continuing to fall. Charlie Wright reports on the impact of the minimum funding requirements that were introduced in 2001 in an effort to open up the profession to a broader pool of talent.

There has been much talk in recent years on widening access to the Bar, which has grown accustomed to accusations of elitism and exclusivity for almost as long as it has existed.

In response to such concerns, a raft of measures have been discussed ? and some even implemented ? designed to broaden the historically narrow pool of talent from which the Bar?s expertise has hitherto been drawn.

While change is always likely to meet resistance from one quarter or other, the move to introduce minimum funding requirements for all chambers offering pupillages to aspirant barristers was broadly welcomed ? at the top end of the profession, at least.

The Pupillage Funding and Advertising Requirement came into effect on 1 January, 2003, handing pupils a minimum award of around ?5,000 for the first six months ? payable in monthly instalments of ?833.33, in addition to expenses ? with a similar amount in guaranteed earnings during the second seat.

The issue is, of course, nothing new. It was as far back as 1989 that the Bar Council first resolved to introduce minimum payments for pupils, issuing a statement that the body "shall set a level of minimum income for pupils annually, so that each pupil will be in receipt during the 12 months? pupillage of that minimum income and that it will be a professional obligation on all members of the Bar to ensure that it is met".

In 1996 the Hooper Working Party recommended that the ?10,000 benchmark currently in force be adopted, while Lord Goldsmith subsequently advocated setting a formal target of 500 such funded pupillages.

The explicit aim of the scheme was to widen access to the profession, via what the then Bar Council chairman Roy Amlot QC in 2001 described as "an investment in the quality of the Bar and the judiciary in future years".

Commenting on the introduction of the funding requirements, Amlot said: "I believe that [by introducing the funding requirements] we have made a substantial contribution to opening up the profession, especially to students from less privileged backgrounds."

However, even as the plans were being framed, concerns were voiced that the result would be fewer pupillages, with the Bar Council itself estimating ? conservatively ? that the requirements would see around 100 fewer pupillage opportunities made available to students.

Certainly the requirements have had little impact on the leading commercial and Chancery sets, which can offer pupils anything up to ?45,000, plus earnings, over the course of their one-year apprenticeship.

However, official figures show a steady decline in the number of pupillages on offer across the UK. Indeed, the total number of available pupillages is at its lowest level for years, having dropped by almost a third ? from more than 850 in 2000-01 to well under 600 in 2004-05.

While some of that decline can perhaps be attributed to a general tightening of belts in what are unforgiving times for some elements of the Bar, the shortfall is worrying nevertheless ? especially for the record numbers of students attending the Bar Vocation Course.

Nottingham family law set St Mary?s Chambers offers one or two pupillages a year, with students receiving the Bar Council standard of ?5,000 for each six-month seat. St Mary?s clerk Carol Sansom says specialist and regional sets, like their City counterparts, have little choice but to comply with the requirements.

"You miss out on so much without a pupillage," she comments, "so there is no way we would not offer one. What we offered pupils [financially] before the requirements was not very different, so there has not been a huge impact from the requirements."

Others in the regions, however, are less upbeat.

"The requirements have definitely had an impact," says Peter Dadge, senior clerk at 15-member southwest set Devon Chambers. "At one time we had three pupils at once, now we have just one. Even larger sets are taking on fewer people."

He adds: "It is important to invest in people, especially as most of our counsel are home-grown? but it has made it tougher for smaller chambers."

Similarly, there is a new emphasis among some cost-conscious sets of providing pupillages only to those candidates thought most likely to subsequently secure a tenancy.

Collette Price, a family law specialist and pupillage committee member at northeast set Fountain Chambers, suggests the funding requirements are eroding a widespread sense of "civic duty" among local chambers to offer unfunded pupil-lages to aspiring youngsters.

"We used to offer two unfunded pupillages, but now we just offer one," she says, "so, from that point of view, pupil-lages have halved. The requirements give with one hand but take away with the other."

Sets unable to comply with the requirements can apply for an exemption, although the onus is firmly on the applicant to demonstrate its need for an exception to be made.

Indeed, the waiver process was described by the Department for Constitutional Affairs as "the key element in the Bar?s policy for ensuring that compulsory funding does not significantly reduce the number of available pupillages or have a disproportionate impact on disadvantaged groups".

A report by the Bar Council?s Pupillage Funding and Adver tising C om mit tee (PFAC) report last year revealed that a total of 101 applications for waivers had been lodged with the committee between its creation and the end of 2004, although the Bar Council was unable to confirm how many of those applications were approved.

In January 2006, the duties of the PFAC were passed to the Pupillage Funding and Advertising Panel, an offshoot of the Qualification Committee formed by the creation of the new quasi-independent regulator, the Bar Standards Board.

Observers might reasonably ask whether a reduced intake to the Bar would be harmful to the profession.

Certainly, there is a growing consensus among solicitors, administrators and barristers themselves that the Bar is overmanned, with more people competing for reduced levels of work at lower margins than were previously available in a less rigorous commercial environment.

Law firms are also retaining in-house an increasing share of the advisory work traditionally dispensed to junior barristers ? in part, a reflection of the need for City litigation departments to keep their own associates busy amid the fall-off in litigation.

Meanwhile, some suggest that the minimum requirements are already in need of revision ? with average student debt and remuneration for trainee solicitors continuing to rise ? and are set for an increase. The full impact of the requirements will be seen in due course.