Pupillage Committee Response to the Middle Temple Funding Allocation Working Group

1. This response has been prepared by 5 Essex Court’s pupillage committee, some (but not all) of whose members are members of Middle Temple. We have extensive experience of recruiting pupils and monitoring their progress. We engage with pupillage applicants in a number of contexts outside the formal application process, including by attending many student events and on social media. One of our members, Georgina Wolfe, is co-author of A Path to Pupillage (Sweet & Maxwell, 2013) the proceeds of which go to the Middle Temple Scholarship fund. We therefore feel that we are in a good position to respond to the Working Group’s Information Paper.

2. We think that the Information Paper is a very helpful analysis of the allocation of scholarship funds, the financial difficulties experienced by students, whether the current allocation policy provides “value” (we think it does, but there is scope for exploring further initiatives), possible means of easing the financial strain on aspiring barristers, and the options available to the Inn.

3. For the reasons we give below we think that, of the options identified at paragraph 12.1 of the paper, the present policy should, broadly, be maintained. If any unrestricted funds are allocated post-qualification (thereby reducing the amount available for those considering embarking on training for the Bar) this should be kept to a small portion of the overall “pot”.

4. There are three components to the context that are well identified in the Information Paper.

5. First, the increasing financial burden for pupillage applicants (“financial burden”). Second, the disparity between the number of BPTC places compared to the number of pupillages and tenancies (“competition”). Third, changes in the profile of the independent Bar, particularly in respect of publicly funded work (“profile of the Bar”).

6. We recognise each of those three components and they each raise significant and complex and differing issues. However, we think that it is the financial burden that is of particular importance (particularly given its impact on socioeconomic diversity) and which should have the greatest influence on the Inn’s policy on allocating scholarship funds.

7. Financial burden: Whilst there are exceptions, the greatest financial burden is generally during the GDL and BPTC courses. This is because during those years students generally have to fund very high levels of tuition fees (as well as living expenses) and do not generally have an income outside part-time work. By contrast, during pupillage a pupil receives a minimum award of £12,000 (and in many Chambers significantly more than this), and only incurs limited tuition costs . So, to the extent that scholarships are intended to ameliorate financial hardship we think that they ought to be targeted at students who have not yet commenced pupillage. We therefore commend the status quo. We appreciate that there are cases of hardship amongst pupils and junior tenants, and the levels of debt with which they are burdened are sometimes overwhelming. But we think that is better addressed (as at present) by the making of exceptional hardship grants, and by the benevolent associations, rather than by use of funds that are currently allocated to scholarship funding. We also appreciate that for those on the minimum award of £12,000 money will be very tight. But (without significant tuition fees, with full qualification much closer on the horizon, and with the ability to earn in their own right during the second six) they are generally in a much better net position than their counterparts on the BPTC.

8. Competition: Competition arises because there are fewer tenancies available than there are pupillages, and fewer pupillages than there are BPTC places . We do not see any inherent problem with competition. The Bar is a competitive profession and a competitive process (so long as it is fair) is healthy, if not necessary. There is a valid debate about the degree of competition that is appropriate and whether, currently, applicants who are never likely to succeed at the Bar are being unfairly accepted onto the BPTC course. This raises questions as to the qualifications that should be required for entry onto the BPTC course and the number of BPTC places that should be available. These matters are not, however, directly relevant to the allocation of scholarship funds. We do not think that the allocation of such funds can or should be used artificially to change the number of BPTC places or the number of tenancies. It may be possible to use such funds to increase the number of pupillages (by providing funding for pupillages that would not otherwise be made available by chambers). But this would be counter-productive. It would decrease the amount available for students at the BPTC stage (which is where the financial burden is greatest). It would unnecessarily increase the competition for tenancies. And it would, for no good reason, simply “push the bottle neck further along” – changing the respective degrees of competition for pupillage and tenancy without increasing the overall number of places available at the independent Bar or decreasing the overall level of competition. Just as there is an arguable point that too many BPTC places are made available (leading numbers of students who are unlikely to succeed at the Bar further into debt and giving false hope), increasing the number of pupillages (without any corresponding increase in the number of tenancies) may have a similar impact. While we appreciate that there is some argument that those who do not ultimately obtain tenancy are better off having completed a pupillage, we do not consider this a sufficient reason to outweigh the other factors set out in this paper.

9. Profile of the Bar : We do not seek to understate the pressures facing the Bar, particularly the publicly funded Bar, and the consequential impact on access to justice, the profile of the Bar and the opportunities available to those who aspire to practise at the Bar. These are difficult and important issues that call for a response from the Bar’s representative bodies (potentially including the Inns). But we do not think that they should have a direct impact on the allocation of funding. Seeking to address these problems through the vehicle of scholarship awards is likely to be, at best, futile. Market pressures will not be substantially averted by the provision of relatively modest funding. But more than this we think that there is a risk that it would be counterproductive. Such funding would potentially encourage applicants into areas of work where they are less likely to be able to maintain a successful practice. It would potentially aggravate rather than ameliorate the problems facing individual applicants and members of the young Bar.

10. Balancing the different contextual components: We are concerned about the aggregate impact of the financial burden and the level of competition on the socioeconomic diversity of those embarking on the BPTC. Unless this cohort sufficiently represents the population there is no prospect that the Bar will ever be representative. Without wishing to seem complacent, and without having undertaken our own detailed analysis of the composition of BPTC students as a whole (our focus being on the cohort that apply to us), we think that BPTC students are not grossly out of kilter with the wider population in terms of, for example, gender and race . But we do think that there is a real problem with socio-economic diversity . Those without parental financial support who are contemplating a career in the Bar are likely to be significantly in debt before even starting the GDL/BPTC. Even the most able candidate is likely to be deterred from a career at the Bar by the aggregate effect of the financial burden and the competition.

11. Scholarship funding has an important part to play in ameliorating the impact of these factors on socioeconomic diversity and in reducing the deterrent to able but less privileged applicants from aspiring to a career at the Bar . We think this is best achieved largely by maintaining the status quo: awarding scholarships entirely on merit, but allocating funding to individual scholarships on the basis of need. Not only is this fair, not only does it ameliorate disincentives for a group that is underrepresented at the Bar (to the disadvantage both of members of that group who aspire to a career at the Bar, and to the profession, and to the public) but it also has a number of indirect consequences which are likely to increase socioeconomic diversity. Quite apart from the narrow financial impact, it encourages those awarded scholarships to believe that they have the abilities to succeed at the Bar . This is likely to increase the proportion of those from less privileged backgrounds who undertake the BPTC and that then at least provides a representative cohort from which selections are made for pupillages and tenancies. Reducing the funds that are available at the BPTC stage and re-allocating them to the pupillage (or later) stages may have the opposite effect.

12. There is a further important factor. We are not able to interview every applicant for pupillage. Most other chambers are in a similar position. It follows that we (and most other Chambers) have to conduct a “paper sift” of applicants. Our view is that the paper application forms are a crude indicator of whether an applicant has the skills necessary to succeed at the Bar. Performance at interview is a better indicator. Moreover, because of the extra advantages often available (eg in respect of work experience etc) those from more privileged backgrounds may score more highly in respect of certain paper sift criteria. We therefore attach significant weight to scholarships and prizes that have been awarded to applicants, particularly where these have been awarded by the Inn following an interview based assessment. We think that the Inns’ scholarship system provides a very helpful indicator (both to applicants and pupillage committees) of an applicant’s prospects at the Bar . This reduces the disadvantages of Chambers not being able to interview every applicant, and is likely to have a beneficial effect on socioeconomic diversity.

13. Other options: We would encourage anything that would mitigate the hurdles facing those aspiring to the Bar who have the capacity to succeed, particularly those from less privileged backgrounds. We think maintaining the status quo in respect of allocation of funds best achieves this objective. But there is also scope for other initiatives, some of which are identified at paragraph 11 of the Working Paper. These include reducing the cost of the BPTC, switching from grants to loans, or to a mix of grants and loans, providing loans in conjunction with a bank, buying loans at a discount, increasing the “pot” via further endowments and, we would add, increasing the pot by encouraging established members of the Bar to “repay” their scholarships. We support each of those. We would also encourage initiatives that discourage those who are not likely to succeed at the Bar from embarking on the BPTC. The “fact sheet” produced by the Bar Standards Board in 2012 is a good starting point, but we think it significantly understates the hurdles and could and should be harder hitting. We think those applying for scholarships should be given the statistics and told, in terms, that if they are granted a scholarship it is because the panel has assessed that they have the skills necessary to succeed at the Bar. Equally, they should be told that whilst some unsuccessful applicants go on to have a successful career at the Bar, if they are not awarded a scholarship, they should consider very carefully whether it is likely that they will secure a pupillage and tenancy and that they may wish to take this into account before incurring significant additional debt.

14. Conclusion: The Bar Council is right to identify socioeconomic diversity as a priority concern for those seeking to qualify at the Bar. Scholarship awards have an important role in this respect. The status quo in respect of allocation of funding (ie to those at the BPTC stage who are most likely to succeed at the Bar) should be maintained. But further initiatives should also be considered to encourage the most able, regardless of background, whilst ensuring those who are less likely to succeed have their eyes open(ed) to the realities.

Jeremy Johnson QC
For 5 Essex Court Pupillage Committee
[Jeremy Johnson QC (Middle Temple), Russell Fortt (Inner Temple), Kate Cornell (Lincolns Inn), Georgina Wolfe (Middle Temple), Jonathan Dixey (Lincolns Inn), Robert Cohen (Inner Temple)]
7th June 2015