Stemming the young Bar tide
11 March 1998
Ronald Thwaites QC likens the huge number of aspiring barristers to modern-day refugees from central Europe. He says the profession must radically improve its border controls. Ronald Thwaites QC is head of 10 King's Bench Walk.
London is to the legal profession what Hollywood is to the film industry.
Droves of young hopefuls are hypnotised by the bright lights and by the idea that the streets are paved with legal aid certificates and traineeships.
The young do not heed warnings, nor do they read statistics about failure rates. Thousands of surplus young people arrive at the English Bar, like modern day refugees from central Europe, on one-way tickets, carrying their possessions in a bedspread, homeless and in search of a better life.
They are student barristers, known as pupils, who have found no permanent place in the profession. Most complete their compulsory twelve-month pupillage and stay on in the legal ghetto for a time, doing further spells as pupils - or "squatters" as they have become known.
Some are fortunate and manage to find a tenancy in good, decent or half-decent chambers and from there they can look forward to building a legal career. Others take temporary refuge in minor sets, or sets that are badly run or have no work - "clip-joint chambers" who simply want to bleed the young of rent, while providing no back-up or prospects.
Those who are desperate cling on in the forlorn hope that somehow work will come in. In the end, after enduring further hardships and privations, without obtaining their legal passports, weighed down by debt and disillusionment, many are deported back to the real world.
There are nearly 10,000 barristers in England and Wales (more than half of them are in London), but there is too little work to keep all barristers fully employed. For a tiny minority there is too much work, but for the general run of barristers there is a struggle to maintain and improve their position. Around half the Bar is less than 10 years' call.
Barristers die, or they retire, or become judges and fall out of fashion. But vacancies through natural wastage are not clear cut. If a senior leaves chambers, his work may be re-distributed to others there or just disappear. It is not like the civil service where an empty desk represents a job to be done. Life at the Bar is more ephemeral in nature and quite often when a barrister disappears, his work does too.
There are a small number real vacancies every year - varying between 300 and 500 at most - but at least 1,000 new pupils want to start each year. How can they be accommodated when there are no jobs for them?
The educational requirements have risen, so that these days most aspiring barristers must have at least ABC at A level and an upper second degree. But the number of aspirants keeps rising, encouraged in part by the proliferation of course providers.
Universities would provide degree courses in kite-flying, roller-blading and repairing typewriters if they thought that students would pay fees to them in large enough numbers. But they would not provide job opportunities in any of these fields.
It appears we are unable or unwilling to control entry into our profession because of the cries of "restrictive practices or monopoly" that might be heard. This is typical of the cowardly approach we are notorious for adopting in relation to our professional affairs.
It must surely be better to control entry, than to have an open-door policy that slams shut in the face of the would-be barrister after he or she has spent years of their life and thousands of pounds struggling to qualify.
Veterinary surgeons have strictly controlled entry to their profession to ensure that they only have sufficient vets to service demand. It is tough to get into, but at least those who make it are sure of being successful in finding a job. Perhaps we could learn some thing from them.
In addition to being swamped by new recruits, the Bar has suffered upheavals elsewhere.
At least half the Bar's members (and perhaps many more) rely wholly or in part on criminal work. A number of factors have affected that source of work.
Fewer cases are being committed for trial at crown court. Committal proceedings themselves have been simplified, take less time and provide less work for the Bar.
Solicitors are also doing more of the work in-house that was traditionally sent to the Bar. Standard (and significantly lower) fees have been introduced and are spreading to more and more cases. Publicly funded work has been, or is being, capped.
Meanwhile, prosecution work will be further reduced when the Crown Prosecution Service (backed by the Government) gets rights of audience in all courts.
And on the civil side, an increasing number of City companies are using their own in-house solicitors to settle pleadings, a job that until recently went to counsel.
The concept of "no win-no fee" is the latest unwelcome US import, which inevitably means that in a proportion of cases barristers will not be paid for their work (depending upon a combination of skill, judgement and luck) .
Methinks, Mrs Worthington, you would be better to put your daughter on the stage.
But what can be done? One suggestion I would make is that if you want to practice law, do a law degree as your first degree. It is an expensive indulgence to take history or English only to spend an extra year on the conversion course. The other advantage of a law degree is that it teaches you how to use a law library (something that does not come naturally to many) and to distinguish between a crime and a tort.
But the most fundamental change I would introduce would be to bring back the correspondence course as a means of qualifying for the Bar. I did the Bar exams myself by correspondence course while I was employed full-time in the City earning my own living.
Many people took the Bar correspondence course to enhance their promotion prospects. In its olde worlde form as "barrister-at-law" it became a standard qualification for those who wanted, for example, to become a company secretary.
Many others, like myself, took the course because they wanted to practice at the Bar, but lacked the funds to do the nine-month full-time course, while their local authority refused to pay for it.
There will be those who claim that the new Bar course - with its emphasis on practical exercises, advocacy training and court visits - could not be completed by correspondence. But in over 20 years of selecting and monitoring pupils and assisting in choosing them as tenants, I have not noticed any improvement in their starting abilities, either on paper or on their feet, since the "practical" content was introduced.
It is only the essential training they get in pupillage that will equip them to be released on a trusting public. They can then cut their teeth on small work and start the long training that will eventually turn them into creditable journeyman barristers.
I do not believe that we should be paying money to third year undergraduates, as was proposed by Peter Goldsmith QC in his latest contribution to the future of the Bar.
If graduates went out to work and spent time in business or commerce while studying for the Bar, they would acquire valuable knowledge of the world. They gain business and commercial maturity and, if a career at the Bar did not materialise, they would have useful contacts to help them pursue a different career path.
We will never be able to guarantee a pupillage at the Bar to all those who want one, but we could improve things by making it cheaper to qualify. The only way of achieving that, unless we pay students, is the correspondence course. I do not know why that method was abolished in the first place.