All Change Please and Mind the Gap!

Some readers of this article will probably still remember the days when arrangements for pupillage at the Bar were largely satisfied by a barrister practitioner agreeing to accept a pupil in return for a payment, from the pupil, of 100 Guineas. There were no other formalities to be completed and the pupil was expected to absorb the requirements of practice at the Bar by a form of osmosis, by observing and noting what an established practitioner did and how that person behaved, in the hope that enough would rub off onto the pupil to enable them to make a start on their own career at the Bar.

But nothing lasts for ever and change began to filter into the pupillage process. By the end of the last century, pupils no longer paid for the privilege of pupillage themselves but were expected to be paid by those providing the pupillage place. Expectations had evolved as to how a pupillage should be conducted, although the nature of the Bar, consisting as it did either mostly of self-employed practitioners working within a chambers structure, or of employed barristers working within a variety of organisations, meant that those expectations themselves varied quite widely.

Nothing holds back progress, and the first decade of the new millennium saw a growing attention on regulation of the legal professions, including the Bar. Codes of Conduct became more refined and more detailed. Greater focus was applied to the education and training of those who wished to enter the profession. Many readers will remember the use of ‘pupillage checklists’ intended to give a list of requirements considered necessary for a pupil’s acquisition of knowledge or skill. Those checklists were flexible enough to cater for the different areas of work which barristers did, and recognised that a criminal pupillage did not require exactly the same elements as a pupillage focused on civil practice, or work in the family courts.

The work of refinement and detail has continued and is continuing. The Inns of Court, who had provided training sessions for prospective pupil supervisors for many years and who had had the responsibility for approving barristers as pupil supervisors, have continued to play an important role in the process and will no doubt continue to do so into the future. But much of the direction and impetus relating to the supervision of pupils now comes from the Bar Standards Board (BSB), whose regulatory role includes setting the education and training requirements for those wishing to become barristers and for those who already practice but also wish to continue the valuable process of helping to turn aspiring barristers into real practitioners.

Many readers will already know that those chambers and employers which continue to provide pupillages are now known as Authorised Education and Training Organisations (AETO) and are required to be registered as such with the BSB. The Inns of Court no longer approve anyone as ‘pupil supervisors’. That task now falls on individual AETOs, who are expected to consider whether those within their organisation who are to take on the role of pupil supervisor have the necessary skills and training to perform that still necessary task.

To help in the consideration – and identification – of suitable practitioners to act as pupil supervisors, the BSB has provided increasingly detailed guidance on what needs to be included in ensuring that all pupils receive an adequate introduction to the work of barristers. In September 2016, the publication by the BSB of the Professional Statement for Barristers, incorporating the Threshold Standard and Competencies, set out the knowledge, skills and attributes which all barristers will be expected to have from ‘day one’ of practice. The Professional Statement does not replace the Code of Conduct contained within the BSB Handbook, but the standards and competencies contained in the Professional Statement can be used as an evidential point of reference if questions of competence in practice arise, for example by way of a complaint against an individual barrister.

To a large extent, the Professional Statement replaces the need for the use of the old ‘pupillage checklists’, although the standards and competencies are not as specifically identified as the items listed in the checklists. What is clear is that all barristers – and their chambers or workplace employers – do need to be fully aware of the content of the Professional Statement, not only if they intend to supervise pupils, but also because that content defines the expectations and standards applicable to even established practitioners.

For those barristers who intend to act as pupil supervisors within their AETO, there are other publications which are also very relevant, and with which those practitioners need to be familiar. As has already been noted, the BSB Handbook incorporates the regulatory standards and requirements which used to be set out in the Bar Code of Conduct. Also included in the BSB Handbook are the Qualification Rules, which deal with the requirements for individuals to qualify as a barrister and receive authorisation to practice, the need for prospective Bar training providers – including those who provide pupillages – to become AETOs, and the minimum requirements for the Inns of Court in the admission of student members.

The Qualification Rules do not contain all the mandatory training requirements for individuals wishing to become barristers, or for those organisations seeking to become AETOs so that they can provide Bar training (which includes both the vocational stage of training commonly known as the Bar Course or Professional Training Course, and the workplace stage of training, which is pupillage whether in chambers or in an employment context). Some of the mandatory requirements are set out in the following publications.

In December 2018, the BSB published its Authorisation Framework for the Approval of Education and Training Organisations. This was produced as a part of the BSB’s programme of regulatory change; the Future Bar Training initiative. The intention is to keep four principles in mind when considering regulatory matters. Those four principles are: 1) Flexibility; 2) Accessibility; 3) Affordability; and 4) High standards. The Authorisation Framework describes how AETOs need to be registered with the BSB and what those organisations need to be able to show as evidence to support their application for registration, including evidence about how the four basic principles are to be met.

For AETOs offering the pupillage/work-based element of training, evidence must be provided to show how the organisation meets the requirement for flexibility in the way it provides pupillage. For example, the AETO will need to show how it considers the pupils’ personal circumstances, how it promotes a more diverse legal profession and how it supports the pupil to develop and demonstrate the Professional Statement competencies. In addition, the AETO must be able to show how any programme of pupillage training which it intends to provide assists the pupil to acquire competencies which might not be readily available within that AETO. Similar needs arise in respect of the other principles, such as a requirement to provide clear, accessible and meaningful information to the pupil about the affordability of pupillage training, and any prospects of being able to progress in the profession after the end of pupillage.

An important part of defining the requirements expected of pupillage and from pupil supervisors is now provided in the BSB’s Bar Qualification Manual, which came into force in April 2019. This contains specific content relating to pupil supervisors at section 4B of the Manual, which sets out what AETOs must do to ensure that supervision of pupils is adequate and effective. Pupil supervisors can now supervise up to two pupils at any one time, but one pupil must be in the non-practising stage of pupillage and the other pupil in the practising six-months. 

Current pupil supervisors must undertake refresher training by no later than Saturday 31 December 2022, to ensure that they are up to date with the more recent rules and guidance. From Sunday 1 January 2023, all pupil supervisors must undertake refresher training at not more than five-year intervals, and for those supervisors who have not supervised a pupil in the previous three years, the refresher training must have been undertaken within that three-year period. New pupil supervisors must have undertaken appropriate training before starting to supervise any pupil. 

It is for the AETO to decide what constitutes appropriate training. As noted above, it is no longer the role of the Inns of Court, or the BSB, to ‘approve’ any practitioner as a pupil supervisor; that is now a matter for the individual AETO. The BSB will register pupil supervisors as a part of the process of registering a pupils’ pupillage, where a named pupil supervisor is required to sign off on any part or period of the pupillage.

So far as training of pupil supervisors is concerned, the BSB does not accredit any organisation as a provider of supervisor training. Any organisation providing supervisor training must however meet the outcomes required for such training as defined in the BSB Curriculum and Assessment Strategy published on Monday 1 April 2019. Any AETO providing pupillage after Sunday 1 September 2019 must have met the prescribed outcomes, which very broadly require pupil supervisors to: 1) Be familiar with the regulatory requirements, including the current versions of the documents highlighted in this article as well as the Equality and Diversity Rules of the Bar Handbook; 2) Be familiar with their AETOs’ training plan for pupils – which means that each AETO must have such a plan; (3) Understand how to be effective as a pupil supervisor, including how to teach, and how to assess any pupils’ progress through pupillage and; 4) Be familiar with their AETO’s policies on wellbeing and support mechanisms for pupils, and on the availability of external help if that is needed.

In conclusion, there is much which any pupil supervisor now needs to be aware of and familiar with. The role has certainly changed. It is no longer possible to allow pupillage to occur by osmosis and observation alone. Now, the pupil supervisor has to be a teacher, actively guiding the pupil through the increasingly regulated path to becoming – and then remaining – a member of the barrister profession. The emphasis is now firmly on the provision of pupillage as a regulated function of the AETO, and on the decisions and planning which is now required of that organisation.

Over the last few years, the process of change has meant that many chambers and workplace employers have developed their approach to pupillage and its supervision, so that the greater requirements of regulation do not come as an onerous task. But there will inevitably also be those organisations who have not kept up with the changes, and who are unaware of what they are now required to be doing, and who thereby risk falling into the gap.

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