...but it would put pressure on chambers to fund the course – and could lead to it getting scrapped altogether, writes Lancaster University's Angus MacCulloch
The plight of thousands of aspiring barristers who invest large sums of money to undertake the BPTC, but are increasingly unlikely to secure pupillage, has encouraged a lively debate in and around the profession (see, for instance, contributions from The Law Horse, Alex Aldridge and BPP Law School CEO Peter Crisp).
In this debate competition law looms like a spectre; often being referred to but rarely being discussed.
It is also worth remembering that any question regarding access to the Bar is equally applicable to all other branches of the legal, and other, professions.
The Bar isn’t being singled out for attention, it just happens to be in the cross hairs at the moment.
The competition law issue is essentially very simple. The Bar Standards Board (BSB), as a professional body and regulator, controls the entry requirements for the profession. The competition authorities become concerned when it appears that the rules put in place by the regulator appear to favour the interests of the profession over that of others. The Competition Authority’s task is to ensure that the market for legal services operates in a manner which best serves the interests of the consumer.
When deciding who can practice at the Bar the rules should ensure the quality of legal services and, by facilitating healthy competition, ensure low prices and increased accessibility, by means of direct access or otherwise.
I’ll take a look at a few of the suggestions made for reform and tease out the competition problems before I pitch in my own thoughts.
Limit the number of BPTC places
This is an idea that comes up quite often, but it will be the hardest to sell to the competition authorities. Why?
A naked restriction on numbers permitted to enter the profession does nothing for the consumer of legal services. The only people who benefit are the profession themselves. It is in the consumers interest to have vigorous competition to get into the profession, as it drives up standards as only the ‘best’ will get through, and vigorous competition within the profession, to drive up standards and drive down prices.
The case has not been made out why a restriction on numbers benefits the consumers of legal services. There may be an argument that the restriction protects a group of law students from investing in useless qualifications, but that limited benefit would have to clearly outweigh the benefits to the wider consumer from vigorous competition.
Qualitative restrictions on entry to the BPTC
This is more likely to be approved. High quality legal services are of benefit to the consumer and the restriction ‘fits’ with the aim. This leads to the more interesting debate about what sort of restriction is proportionate. A very high bar is less likely to be approved; as that level of restriction isn’t necessary to achieve the aim, and the restriction begins to look like a disguised quantitative restriction.
I’ve ignored questions of social mobility so far. Mobility would also be accepted as a legitimate aim which should be weighed up in regulating entry to the profession.
No BPTC until pupillage is secured
This solution is counterintuitive, in that it would probably restrict the numbers doing the BPTC most, but would be quite easy to sell to the competition authorities. The simple reason is that it is a market solution. There is no ‘hard’ quantitative restriction on entry placed by the regulator.
Each chambers independently determines how many pupils they wish to take on (it would have to be an independent choice – if there was evidence of collusion or central planning on numbers, we are back to a naked quantitative restriction).
In this scenario the market sets the numbers and competition between qualified applicants ensures the ‘best’ secure the available places (here the ‘best’ is selected by each chambers on the basis of their own criteria).
The most saleable solution?
In competition terms it should not be a surprise to see that the ‘market’ solution works the best. There are also few social mobility issues in relation to the qualifications needed to apply for pupillage, as there would be open competition between all who hold a law degree or GDL.
The problem for the Bar with this solution is that it raises questions about who funds the BPTC? At the moment, generally, all the risk is carried by the student; they self-fund the qualification. If a candidate has already secured pupillage with a particular chambers there is a legitimate question about why that chambers makes no contribution to a qualification they demand, and arguably benefit from. In fact, some chambers offer monies pre-pupillage, in an attempt to off-set the self-funding issue.
Nevertheless, the tension created between the individual self-employed barristers and the new entrants remains – why would they want to fund them? If we were working under an employment model there would be no question that a good employer should at least contribute to an employment specific qualification. Yet, if chambers were required to contribute to the qualification they may well begin to question why a one-year full-time course was necessary before the commencement of pupillage.
Competition is about the consumer
The competition issues in relation to entry to a profession are quite simple. The difficulty is balancing all the conflicting interests when it comes to ensuring that enough good quality candidates make it through. If the legal profession is to get its training regime accepted by the competition authorities they need to stop thinking only about what is best for the profession and start thinking hard about the consumer. So far there isn’t a great deal of evidence of that in the current debate.
Angus MacCulloch is a senior lecturer in law at Lancaster University. His research interests lie chiefly in competition, EU and business law.