I like Legal Cheek and I like Alex Aldridge who runs it. Nonetheless, it has recently gone all tabloid on the issue of funding for pupillages, and I have told Alex so.
Last week, a tenant at 5 Pump Court, writing on Legal Cheek, argued that barristers should be taxed £3 per day – or the price of “less than two cups of coffee a day” – to fund pupilages, with all sets of chambers compelled to take one pupil per 25 tenants. Under the proposal, pupils would be paid £25,000 per year.
The idea has been taken up by the anonymous paralegal whose idea was to occupy the Inns of Court because he hadn't got a pupillage. He is confident that the proposal would “also have extremely positive repercussions for the outrageous situation with regard to lack of pupillages at the Bar.” He adds: “Force barristers to pay a contribution towards pupils’ training and more pupillages would undoubtedly flow from the wider availability of funding."
To which I can only respond: Stone. Cold. Wrong.
There are so many problems with this idea that it's hard to know where to begin. But, for me, the stand out point is that more money for pupillages would not mean more pupillages.
It is right that, in these straightened times, a number of chambers find it hard to fund a pupillage award. And it's hard to see how a proposal that involves more than doubling the minimum award – a symptom, not a cause, of the reduced number of pupillages – is going to help. The reason for the reduction is that there isn't the work.
The reason that there isn't the work is because solicitors are increasingly representing clients in court. The more your chosen field involves publicly funded work, the more desperate the need for solicitors to collar the work for themselves, and the less work there is for the Bar. In crime, for example, the Crown Prosecution Service (CPS) pay their 'Higher Courts Advocates' a premium on top of salary, which must be recouped by not briefing barristers. This playing field is not so much level as vertical in its favouring of solicitors. But that's how it is.
Add in the effect of the impending legal aid cuts, and you can see why the work available for a pupil might be restricted, and why your pupilage – if externally imposed on a chambers, as that Legal Cheek post recommends – represents a direct threat to the livelihood of the junior tenants and, perhaps, their less gifted senior compatriots.
That is an end to the idea: it won't work. That it is implicit in the proposer's worldview that all barristers really have their snouts in the trough, deliberately gorging themselves on third-rate coffee in order to ensure that prospective pupils are shut out, merely makes the whole thing offensive as well as daft.
There is another objection based on fairness. The £25,000 pupillage award figure is supposed to represent the average graduate salary. We can quibble about the figures, but let's not. The reality is that – as most of us would recognise of ourselves – pupils contribute nothing to chambers during their pupillage.
They take up a huge amount of time because they don't know where anything is, they don't know where anyone is, they don't know how to do anything, they get under the clerks' feet and they don't pay chambers’ fees. (Most) Pupil supervisors (mostly) willingly put the time in because they see it as giving something back and because they enjoy the encounter with a bright mind determined to become a legal star. For which they do not get paid. And, when the pupil gets taken on, the contribution to chambers from the earnings made as a result of the training is about 20%.
Why, therefore, a pupil should be paid as if they were contributing to chambers is beyond me. The compulsory funding of awards rests on a consensus within the profession that unfunded awards unfairly privilege the already privileged. It is a way of ensuring diversity and fairness. It should not be measured as if the pupil were an employee because a pupil is not an employee and nor – thank the Lord – is a barrister.
We are self-employed independent professionals. We accept that we have expenses to pay for running our practices. We accept we need to purchase professional liability insurance. And, in order to do so, we ensure that we are less expensive than solicitors because we keep our overheads down. We don't have a secretary because we do our own typing. We don't demand our own desk unless we are using it nearly all day nearly every day. And we work without regard to the hours of our "working week" because we don't have a working week – just work.
From that flows two things. First, we won't take you unless you can do what we do. That is uncontroversial when we talk in terms of talent. But it also refers to opportunity. Secondly, we don't get "taxed" by our profession unless we can be convinced that the payment is necessary. Our governing body funds itself via a practising fee and it is constantly, and correctly, challenged to demonstrate that we are getting value for our money.
It is the essence of being a barrister that no one turns round to me in Starbucks and tells me that I have to use my coffee money for some cause he has arbitrarily decided is better. Especially when a lot of my colleagues don't go to Starbucks because they are actually worried about their reducing incomes. And especially when the proposal is wrong.
I feel better now.