Guest post by Dame Judi Bench: The Bar exams are less exam and more Takeshi’s Castle

I am pleased to host this guest post from a pseudonymous contributor, looking at the exams fiasco facing this year’s Bar students.

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The Bar Exams in England and Wales are a funny thing.  Ask the older generation and they’ll regale you with stories of their local authority paying for them, spending most of the year being drunk and how they were of little use in real life.  Ask anyone who did them in the last 10 years and they will still likely tell you that they were pointless, that they learned nothing, that each lecturer was a ‘A failed Barrister’ and probably that the exams were a walk in the park.  It’s perhaps on that basis you’ve seen complaints from candidates who are due to take exams in August and wondered what all the fuss was about.

Covid has undoubtedly changed the world and candidates have not been spared.  Institutions have rushed to cobble something together online both to teach and assess.  While BPTC providers have assessed candidates on most of the modules that comprise the course, they haven’t been able to offer the criminal litigation, civil litigation and ethics exams because they are run by the BSB.

 

Hang on, when I took the Bar Exams, the multiple-choice exams were ridiculously easy, I really don’t see what the problem is?

Ok Boomer.  Until 2011 the BPTC providers were allowed to set and mark their own exams. Sure, there were External Examiners to make sure that standards were adhered to but as with any exam where you teach candidates and then set the exam there’s always the temptation to shy away from the topics they struggled with or pepper your exam with them depending on where you fall on the John Keating-Miss Trunchbull scale.  The Bar Standards Board rode into town as the new Sheriff and decided to do something about it.

 

Good. Multiple-choice tests are too easy. I mean you can see the answer so you are bound to get it right. It’s not the same as having to search the dark recesses of your mind. Which reminds me, must delete my internet history.

Indeed. It’s why everyone who went on Who Wants to be a Millionaire won a million pounds. The answer was there all along. Multiple-choice questions can be easy if they are poorly written. An essay can be easy if the question is poorly written or the mark scheme offers marks for a scattergun answer, or both.  

 

Right smarty-pants, what were these new exams then?

In 2011 the BSB decided that criminal litigation, civil litigation and professional ethics should be assessed by exams they wrote and provided the mark scheme for.  The BPTC providers would not see them in advance but would have to run the exams and mark them to the BSB’s mark scheme.  All of the exams were a mix of multiple-choice and short answer questions.

 

So, the BSB came to the rescue, the exams were better and I can stop reading?

If only.  Pass rates came down in the first year at all BPTC providers. In some cases 90% pass rates were down to 50%.  Lots of people looked at their shoes and mumbled. The BSB talked about how these were a better test of knowledge and how standards were now being maintained.

 

Were ‘standards maintained’?

This depends on your view of standards.  There was the year where the ethics exam was so ridiculously difficult that the failure rate was about half of those who took the exam.  Years where some questions were so fiendishly difficult that papers were scaled by 20% or more.  If you so inclined, you can read their exam reports. They are long and tedious.

 

I’m reading this, I know the feeling.

That was a statement not a question.

 

Seriously? Right, I believe it was Rizzle Kicks who once said, ‘Let’s skip to the good bit’. Shall we?

Fast forward to 2020 and the exams are now in a settled format.  Crime and Civil are just multiple-choice.  Ethics is just short answer questions.  The BSB use a system where the pass mark is calculated based on the difficulty of the paper so that they don’t have to scale or face the wrath of everyone when the pass rates go up and down like [please insert your own simile for it is too easy inadvertently offend].  Though the exams are set and marked by the BSB, the BPTC providers have to administer them.  They have to book venues, invigilate the exams and deliver the papers back to the BSB.  For candidates with specific learning needs it was down the BPTC providers to ensure that they provided the right environment, breaks and support.

 

Right, bung it all online. That’s the solution to everything isn’t it?

Well not exactly. These exams are closed-book. That means they need to be invigilated.

 

Uh, huh. Closed-book invigilated. I always go for closed-book invigilated. It’s my favourite type of bookvigilation.

Shall I explain?

 

That’s a good idea. I know what it means but others may not.

For reasons best known to those who design the exams it means that candidates are not allowed to have any materials with them in the exam.

 

Like a lucky piece of felt?  Mine was teal and called Norman.

No, as in no notes or practitioner texts.

 

What? No White Book? But I take my White Book everywhere. I shower with my White Book. I read it poetry in the garden. For the price I pay it should read me poetry and sing soothing lullabies.

I fear we have veered off the point.  Candidates are required to answer legal problems without use of practitioner texts or the code of conduct.  You know, like you do on a daily basis.

 

I do no such thing!  The whole point of the practitioner texts is to stop me from ending up in front of the BSB. How then do they expect people to answer questions to show they are up to the task of using a text when they can’t have the text?  This is more circular than the Circle Line.

Which is no longer a circle

 

Not now. I’m not ready for more bad news.

Right, we’ll save that for next time.  But that’s the position, the candidates have to answer questions without any notes which means they have to be invigilated by invigilators to ensure that they only use what they’ve manged to temporarily crammed into the mind.

 

Why not just make the exams open-book then?

An excellent point but despite several reviews of the course the exams remain closed-book. Even when the course changes in September this year, the exams will remain as they are.  

 

When do the exams take place?

There are two sits a year at the moment, April and August. From this year there will be a December sit too.

 

What did the BSB do in April?

They postponed the exams.  I suspect the hope was that by August they could run them as normal.

 

Why not postpone the August sit too?

It gets complicated.  Normally, candidates are required to pass the BPTC in full before they can begin pupillage.  For those who have pupillage immediately after the course it means they have to pass in April if they want to start on time.  If they don’t pass for whatever reason they have to sit in August and either defer their start or the BSB will let them commence in chambers but not call it pupillage until they receive confirmation that they have passed in November.

 

They could then let everyone who has pupillage start as normal and then take the exams in December?

They have done exactly that. They are allowing chambers to take pupils as normal on the basis that they would need to sit in December.

 

What if they fail?

They could take another sit in April but it would mean a break in their pupillage because while you can start pupillage under this special dispensation, you can’t be called to the Bar until you have passed the course. That has not been waived.  While you can do your first six under this dispensation, there is no way to start a second six without being called.  There’s the added uncertainty of what a pupil who fails would do with any money chambers had paid them by way of an award.

 

Right, so take the exam in August. That’s the answer but leaves me wondering why I’ve read all of this.

If you take the exam in August you are expected to do so at home on your computer using a system called home proctoring.

 

Sounds painful. I normally see a Doctor for that procedure.

Home proctoring or home invigilation is where you take your exam on your computer but with your camera and microphone on and feeding to either a recording or an invigilator on a computer elsewhere.

 

That feels a bit intrusive. What if I don’t want to go through with that?

Nobody is being compelled to do so. If they want to defer their exams to December when it is hoped that they can be held face to face again, they are allowed to do so.  Even if they have pupillage as set out above.

 

Why then, is anyone taking them?

Some want to get them done while the material is fresh in their mind. Some have pupillage at chambers who have said that despite the special dispensation afforded by the BSB, they won’t take a pupil who hasn’t passed this sitting. Others don’t mind being recorded.

 

I’ve got quite used to working at home. I could take my exams in my jimjams with a blanket around me and a nice cup of tea. I can walk about when I need to seek inspiration. I won’t have to put up with the mouth breathers and snifflers. Oh this sounds great.

Slight problem. You aren’t allowed to get up at any point.

 

What?

Yes. Not at any point. You can’t get up and move about.

 

That’s ludicrous.

Isn’t it just.

 

What about candidates who need a break because of their learning needs?

You can’t have a break.  You can’t have Kit Kat.  If you step out of view the exam is shut down no matter how much or little you have done.

 

What about candidates who need the exam printed on coloured paper or in a different font size because of their learning needs, or who are blind or partial sighted?

Computer says no.

 

Right, well I’m not doing that then. Surely there is an alternative?

Yes, you can go to a test centre and do it there if you are allowed.

 

That won’t work for everyone

No, quite.  Those who can’t leave the house due to Covid don’t have this option.

 

Students are not a quiet bunch, did they kick up a fuss? Did I tell you about this thing I did during rag week?…

No, but let’s save that for another time. Students wrote a letter to the BSB demanding change and in particular that the exams were open book.

 

Is that easier than stopping people from getting up to have a pee or for other absolutely legitimate reason?

It would be if the exams were designed that way, but they are not.  Open book exams would render most of the questions pointless because you could look up the answer and for whatever reason, the BSB have decided that is not what lawyers do and therefore it’s not a test of being a lawyer.

 

But that’s all that lawyers do!

I know.

 

And they go for a pee.

Doesn’t your junior do that for you?

 

Plus I like wandering around and talking out loud like I’m Quincy

Who?

 

Surely in a test centre you can move about and go to the bathroom or have a break for learning needs or health reasons.

You’d think that, but up until yesterday the suggestion was that if you needed a break for learning or health reasons, you could only do it at the top of each hour. Not when you needed to. If you have problems which require you to move about, you’d have to wait until it was break time to move.

 

That’s not how the human body works. I’ve got a book here that explains, let me go and get it.

I’m afraid you aren’t allowed to look at a book, or move.

 

In summary then, rather than changing the exams to what they should be, a test of what lawyers actually do, they are instead going to be some sort of endurance test of not using the bathroom for 3 hours or moving?

Yes, it’s musical statutes with no music and more Part 36.

 

Worst. Party. Ever.

Tell me about it. No jelly either.