Tuesday, June 12, 2007
Macey-Dare on Joining the Bar of England and Wales Today: A Proposal
Posted by Alan Childress
Rupert Macey-Dare (Oxford [St. Cross College]) has posted to SSRN his article, "'New Certificates of Eligibility,' Training and Entry to the Practicing Bar of England and Wales." His abstract is:
The current system of training and entry to the practicing Bar of England and Wales shows serious imbalances, as discussed in a previous paper on the Economics of Pupillage. Eight Bar Vocational Course (BVC) providers produce around 1000 successful graduates per year over and above the number of available pupillages and annual new tenancies. These students are typically Called to the Bar as non-practicing Barristers but subsequently excluded from any professional legal work as Barristers, for want of an unfunded 1st 6 month pupillage, whose provision is in turn prevented by the Bar's Minimum Pupillage Funding Regulation (MPFR). One laissez faire solution advocated by the Society of Legal Scholars is to leave the current system in place and to allow market forces to restore equilibrium. Another solution advocated by the Bar Council is for Call to the Bar to be deferred until after the completion of pupillage. These two proposals are analysed in a previous paper on the Economics of Deferral of Call.
A third new proposal outlined below is for equilibrium in training and entry to the Bar to be achieved using a New Certificate of Eligibility (NCE) system, combined with No Deferral of Call and strong relaxation or abolition of MPFR. Such a system would have fundamental advantages over other proposals. Firstly, effective control over entry to the Bar would be restored to the Inns of Court. Secondly, the door to the Bar would be opened or closed before students had incurred major BVC expenses. Thirdly, the NCE system would allow effective indirect control by the Bar over the number of BVC providers. Fourthly, every successful BVC student would be expected to qualify as a practicing Barrister at the independent or employed Bar. Fifthly, effective competition for new tenancies would be restored, raising the quality of new tenants and the size and competitiveness of the practicing Bar and social welfare. Sixthly, any discriminatory and deterrent effects on students from disadvantaged background would be reduced thus improving the composition of the Bar over time. Sixthly, the size of the Bar, its national and global influence and ability to compete in the market for legal services would continue to grow.
The abstract on the previous Pupillage paper referenced above appears after the jump.
Not all that related to bar entry, nonetheless see also John Steele's post and link yesterday at Legal Ethics Forum on broader and controversial reforms proposed in the UK about oversight and regulation of the legal profession.
Economics of Pupillage
This paper reviews the economics of pupillage, which is the final mandatory vocational training stage for practicing barristers in England and Wales. First recent trends in data are examined for Bar Vocational Course (BVC) passes, annual pupillages and new tenancies and shown to be significantly out of balance. Major factors behind these imbalances are the eightfold increase in number of BVC providers in the 1990s, the new Bar Council rule making pupillages mandatory for the employed Bar after 2001 and most importantly the imposition by the Bar Council of the Minimum Pupillage Funding Requirement (MPFR) in 2002. Using a simple theoretical model it is shown how relatively low MPFR levels can significantly reduce the number and viability of pupillages offered by the Bar, working through a powerful "pupillage multiplier effect". Additionally, MPFR can have dramatic effects on the composition of new recruits to the Bar, disproportionately discriminating against riskier and poorer students and poorer sections of the Bar including the criminal and employed Bars. An examination of recent survey data appears to support the theoretical predictions, showing the annual chance of gaining pupillage to be twice as high for white as for ethnic minority applicants. The proportional contribution of MPFR funding to a student's overall training costs is then examined and shown to be typically less than 10% for students who benefit while preventing an extra 50% of potential pupillages for students who do not. The welfare costs of MPFR are considered and the social cost of leaving MPFR in place for 10 years estimated at £1.4 billion and rising annually for about 20 years thereafter. Finally MPFR is evaluated from the notional perspective of an anti-competitive measure designed to protect existing practicing barristers and found to be optimal within the group of such measures considered.