The Minimum Wage Act 1998 took effect on 1 April 1999. Following its enactment, the Bar Council quickly realised that the legislation might well apply to some pupillages, many of which are currently unfunded.
The Bar Council therefore sought expert opinion on the matter. Faced with conflicting opinions as to whether or not the act did in fact apply to pupillages, and after careful consideration, the Bar Council took the view that the matter could only be resolved through litigation.
Today in the High Court a test case promoted by the Bar Council will be heard. We will then be able to advise our membership accordingly.
This is action by a responsible professional body. It would have been intolerable for a legal profession such as ours to leave the application of a fundamental law to pupillage training in a state of complete uncertainty.
There are some barristers, and indeed people outside the profession, who would rather we had not stirred this particular hornet's nest.
However, I have no doubt we would have faced litigation, probably hostile litigation, regarding the issue sooner rather than later. In those circumstances the Bar Council would have faced severe criticism for not having clarified the issue earlier.
It is infinitely preferable to proceed in the manner that we have rather than conduct a rearguard action in the inevitable glare of a media spotlight.
Quite apart from that, another pressing reason for resolving this question as quickly as possible is the potential for backdating of payments.
Should the High Court decide that the Minimum Wage Act does apply to pupils then it follows that those who satisfy its criteria, and who have trained in chambers since 1 April 1999, may be entitled to claim monies owed to them.
Chambers will not have budgeted for this unforeseen liability and that is unfortunate. But it is surely far better that they face a bill that has been accruing for, in the worst circumstance, five months for each unfunded pupil, rather than a bill for a year or perhaps more.
Thus, while there is a sense of urgency in clarifying the law, there is also a strong financial imperative in sorting this matter out now.
The bar should be grateful to Rebecca Edmonds, the claimant in today's case.
In order to mount this action we had to identify an individual who fitted the profile of the type of person who might be entitled to the minimum wage. In other words, someone having undertaken an unpaid pupillage since April 1999.
Rebecca volunteered to be the claimant in this case. She has not brought this action out of any desire to exact financial benefit for herself, nor because of any conflict with her current chambers. Rebecca has agreed to participate because the Bar Council asked her to assist her profession in clarifying an important point of law which has far-reaching implications for the bar.
Her agreement to assist her colleagues in this way should be treated with the highest respect. It would be shocking if her role was seen in any other light.
In the academic year 1997/98 there were approximately 300 pupils training in chambers without being paid, representing around a third of the total number of pupillages.
It is clear that a good deal of these unfunded places would not have been provided had the chambers in question had to pay the pupils a salary, however small.
In some cases the situation occurs because the chambers simply cannot afford to pay a wage. In others it is because a set is generously assisting a pupil who would otherwise not have been able to complete his or her training.
If the decision by the High Court is that the minimum wage must apply to pupillages this will inevitably have a knock-on effect on the number of places available next year. That would create a serious problem in education and training for the profession, which the Bar Council will have to address.
If, however, the decision goes the other way, the Bar Council will continue its present review of the system of pupillage and the Bar Vocational Course. This review is examining funding for pupils, including Chambers Awards, Inns Scholarships, and the potential of our new statutory power to raise a levy for training and education.
The bottom line in this matter is that barristers should seek to clarify the law if needs be and comply with that law, however problematic that may prove.