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Archive for November 6th, 2010

Today, the Bar held its annual conference – there were even some tweets on the #barconference2010 hashtag – not that many….but a few.  There are not that many tweeting barristers…or, if there are, they weren’t at the Bar conference tweeting.

Nicholas Green QC, the Chairman of the Bar Council of England and Wales,  discussed, among other matters,  the Bar’s moral obligation to the number of new, Called, barristers….

“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.

“At one level, the oversupply of young lawyers intensifies competition for places, helps maintain quality and creates a paralegal workforce, which keeps costs down.  On the other hand, to a profession which places such a premium on ethics, I cannot but feel that there is a moral dimension to our work which we are overlooking.  This seems to me to be one of the major issues of the day and one which the profession needs to grapple with sooner rather than later.”

I understand that some 2000 students each year are now doing the BPTC (Bar Professional Training Course) for roughly 500 pupillages and roughly 250 tenancies.  [The Bar Council has contacted me to reveal that Tenancy / pupillages are roughly in line.  I was going on figures I had been given earlier in the year from other sources] Given that there are a lot of unsuccessful candidates from earlier years, who still wish to pursue a career at the Bar (and there are others who have not found other legal or other work), the problem is growing.  No doubt, the transcript of Nicholas Green QC’s speech will be available next week on the Bar Council website.  Until then, I make some tentative observations.

1. The Bar is (and many would say, always has been) a competitive profession.  I discussed this issue with Nicholas Green QC in a podcast earlier this year. Should the Bar or the regulator, The Bar Standards Board, try to control entry to the profession and deter those who, knowing the facts, wish to become barristers?

2. Students do have a right to enter the Bar side of the profession and, provided they are given the full facts about the ‘odds’ and difficulties, is there really a moral dilemma which could lead to ever more restrictive entry barriers?

Dealing with the related, but separate, point raised by Baroness Deech, Chair of the Bar Standards Board, on the outrage she is reported as feeling that law schools are charging £15,000 for the new BPTC.

Two points – not all law schools are charging this high fee – but, it does seem to be the case that the leading providers, at least in terms of numbers: BPP Law School, College of Law, City Law School and Kaplan, are charging at, or near to, that level.

The law schools will argue that the costs of running a course for modest numbers (There are 8 providers sharing the recruitment pool) justify such a high level of fee.  Given my background in education, and understanding of the need of law schools to generate profits, I would imagine that some providers are making a good margin.  I would hazard a reasonably honed guess (given that I used to do budgets for BPP in the very early days) that a margin of 25% would not be unrealistic.  It may be higher.  That is a very fine return on investment if my speculation is anywhere near accurate. I would be delighted if the law schools would correct me on my speculation – but I suspect that figures will not be forthcoming.

So, let me be provocative and suggest that they may be making as much as 35%+ return – the big providers more?  –  and see if that brings refutation with detailed figures. I would be delighted to be proved wrong – for if the big law schools can prove that they are running at very low profit margins or at a loss, then Baroness Deech’s reported outrage is irrelevant.  I suspect that smaller providers (Nottingham, Northumbria et al), tacking the BPTC onto their overall provision, are not making a profit or a substantial profit.  Their justification for running the course is that they wish to be a full service provider of legal education from degree to professional stage and budget accordingly.

A side point – if Baroness Deech is, in fact, outraged as reported by @legalfutures (above tweet) then it raises the role of the Bar Standards  Board itself.  Should they have a power to control the fees charged? The BSB does not appear to have that power.  In fact, they don’t seem to have that many powers generally in relation to controlling providers, short of the nuclear option of withdrawing accreditation.  The BPP Law School over subscription problem on the BVC  two years ago is illustrative of this?

There is no doubt that lecturers and directors at BPP Law School and the College of Law are well ‘compensated’.  But the old adage of peanuts and monkeys is apposite.  Do we want future lawyers trained by lower quality professionally qualified staff – assuming, of course, that legal education is not a wonderfully constructed gravy train?

I shall be most interested to read Baroness Deech’s statement on this issue.  I assume that it will be published.

The dilemma for the Bar is that it is vital that future barristers are properly trained. Chambers, unlike the very big law firms, cannot contemplate handling complex legal training on their own.  The Bar is, therefore, entirely reliant on providers to provide this stage of legal education and leave the Inns and Chambers to provide more advanced training at the coal face during the pupillage stage.  Unless, of course, the Bar returns to the days of one provider controlled – and subsidised? – by the Bar.  I doubt whether the Bar has the appetite to take on the burden of subsidising the training of future members beyond the provision of scholarships and bursaries.  Again, I could be wrong.

As Nicholas Green QC said…“This seems to me to be one of the major issues of the day and one which the profession needs to grapple with sooner rather than later.”

Many students are watching… and I certainly am…

I shall write again when the full speeches / reports  from the Bar Conference are available.

***

UPDATE Monday 8th November 2010

The Bar Council has given some further very useful statistic on pupillage / tenancies

Nicholas Green QC speech to Bar Council conference in full (and other speeches)

My thanks to @BarCouncil for providing this information.

My thanks also to all who have commented – it is an important issue and your comments give a a flavour of ‘sentiment’ on the issue.

Nicholas Green QC’s speech is interesting… particularly this part… I quote

I simply do not accept the “volenti” argument, that students know the risks and voluntarily assume them. However much the profession or even the educational establishments attempt to tarnish the rose tinted picture of the prospects of success, young, enthusiastic and aspirational young people still come forward. A review of the websites of the educational establishments makes it quite clear that stark realism is far from being the order of the day.

If this is the view of The Bar Council and The Bar Standards Board – then, surely, Competition law which may prevent them from regulating (a) the number of new providers and (b) numbers applying to the Bar, won’t prevent them from regulating more clearly the information which providers (and universities which provide qualifying degrees?) must provide to prospective barristers?

I do think the law schools have a moral duty to provide clear information on the realities….

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Phil Woolas ejected from parliament over election slurs

The Guardian: Court ruling that former immigration minister lied about his Lib Dem opponent triggers a by-election in Oldham East

I don’t propose to cover the issue, save for a few observations below.  The press reports (Guardian above) do this fully.

Section 106 Representation of the People Act 1983 (c. 2)

— (1) A person who, or any director of any body or association corporate which—

(a) before or during an election,
(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.

The solicitor to Mr Woolas, Gerald Shamash, according to The Times ‘insisted that the ruling was an infringement on the rights of free speech’.  This, of course, is arrant nonsense.  We do not have a right to go around ‘freely’ telling lies about other people for political or other advantage.  I do not criticise Mr Shamash for making this statement – he must represent the interests of his client, including brand and image management?

The Times editorial took a similar line on the freedom of speech issue “The suggestion that erroneous campaign statements should be open to juridical interpretation is a thorough danger to the process of free speech”.

Last night there was a fair amount of criticism on twitter that the democratic process was being undermined by ‘unelected judges’.  The fact of the matter, determined by two High Court judges appointed to sit in a special election court, is that Mr Woolas was found ‘knowingly to have printed two untruths’.

The Representation of the People Act 1983 was enacted to protect the democratic process.  As with all laws, it was enacted by Parliament. Most legal disputes in our country, should there be a breach of criminal or civil law, are dealt with by judges.  The separation of the Judiciary from the State is a healthy part of all mature democracies.  Ipso facto, it is illogical to complain when ‘unelected judges’ do what they are supposed to do and ‘judge’.   The decision is not subject to appeal but may be subject to judicial review.

Mr Bercow, The Speaker, has a difficult task on Monday – to postpone the by-election pending the outcome of judicial review. We shall see what he says.

I have some sympathy with the line that exchanges between candidates at election time can be vociferous and even quite unpleasant – but Parliament in its wisdom determined that a criminal offence is committed when a person….“makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.”

I have some sympathy with the line that other parliamentary candidates may have engaged in brutal electioneering – but they were not the subject of complaint. Mr Woolas overstepped the mark and  now faces being stripped of his seat.  I cannot, for the life of me, see how committing a criminal offence of this nature infringes freedom of speech as currently defined by ‘reasonable men and women’.

If Parliament, in its wisdom, wishes parliamentary candidates to be free to lie about each other without criminal sanction and the interference of ‘unelected judges’ or wishes to enshrine the ‘right to lie’ as one of ‘the freedoms of speech’ – it is a fairly routine and simple process: Repeal the Representation of The People Act 1983.  Parliament is, after all, ‘supreme’.

Alternatively, let Parliament deal with these matters of dodgy practices between honourable members and potential honourable members.  After all, they made a good job of dealing with their expenses last year.

And…. while we are on the subject of *Rights*…. please have a look at this excellent round up from The UK Human Rights blog – always an excellent read!

Human rights roundup: Control orders, Google rapped and Henry VII clauses

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