COMMENT | Redefining pupillage in M'sia: Lessons from England and Wales
COMMENT | Recent calls for a minimum wage for pupils in the legal profession have been met with plenty of objections. These range from appeals to laissez-faire free-market principles (rote), to distinguishing allowances from wages (pedantic), to dismissing pupils as non-employees (legally accurate; morally dubious), to casting aspersions on pupils’ utility and intelligence (irrelevant).
Common to these is a traditionalist streak married to a finger-wagging quality, a ‘let-the-adults-handle-this’ tone. You can almost hear their furrowed brows. This is not how we did it in the good old days, they sigh. If RM500 a month was good for the goose of yesteryear, it’s good for the gander of today.
Pupils, who undergo compulsory nine-month training before admission to the profession, have little power and require backup. Many junior and senior lawyers have, thankfully, come out in favour. Some outside voices have chimed in. The Bar is even reportedly working on some sort of pay scheme for pupils.
But many lawyers remain unmoved. Perhaps the Bar of England and Wales, which has mandated a minimum pay for its pupils since 2003, will prove more persuasive.
To this end, I turned to ...
COMMENT | Recent calls for a minimum wage for pupils in the legal profession have been met with plenty of objections. These range from appeals to laissez-faire free-market principles (rote), to distinguishing allowances from wages (pedantic), to dismissing pupils as non-employees (legally accurate; morally dubious), to casting aspersions on pupils’ utility and intelligence (irrelevant).
Common to these is a traditionalist streak married to a finger-wagging quality, a ‘let-the-adults-handle-this’ tone. You can almost hear their furrowed brows. This is not how we did it in the good old days, they sigh. If RM500 a month was good for the goose of yesteryear, it’s good for the gander of today.
Pupils, who undergo compulsory nine-month training before admission to the profession, have little power and require backup. Many junior and senior lawyers have, thankfully, come out in favour. Some outside voices have chimed in. The Bar is even reportedly working on some sort of pay scheme for pupils.
But many lawyers remain unmoved. Perhaps the Bar of England and Wales, which has mandated a minimum pay for its pupils since 2003, will prove more persuasive.
To this end, I turned to an extract of Andrew Boon’s The Ethics and Conduct of Lawyers in England and Wales (Third Edition, 2014).
I learnt that pupillage was not always so regulated. It was in 1863 that the Inns of Court enacted regulations governing admission to the Bar. Pupils then paid 200 guineas (and later 100 guineas) to undergo pupillage, a suggestion that no doubt still perks up a few ears today.
Thankfully, pupillage fees were prohibited in 1975 and some chambers offered bursaries to pupils instead; unfortunately, this came long after pupillage was made mandatory for admission to the Bar in 1959.
In 1989, the Bar Council decided that pupils ought to be paid, but struggled over the next two decades to cobble together a mechanism for fixing wages for pupils. When Parliament passed the National Minimum Wage Act in 1998, concerns turned to whether pupils were caught under this Act.
The test case of Edmonds vs Lawson settled this question. It was brought by a pupil (Edmonds) against her pupil masters and head of chambers; it was backed by the Bar Council and notably “devoid of acrimony”, according to Lord Bingham in the Court of Appeal.
The court decided that pupillage did not constitute an employment contract under the 1998 Act and that the minimum wage set under the Act did not apply to pupils; however, Bingham did recognise an inherent right to remuneration for valuable work, saying: “[i]f the pupil produces any work of real value... the beneficiary is under a professional duty to remunerate the pupil” and that pupils had “no obligation or duty... to do anything for the pupil master which is not conducive to his own professional development”.
Fairer pay, fewer opportunities?
Following this, the Bar Council issued regulations (effective 2003) prescribing a £10,000 annual minimum pay for pupils, roughly in parity with the then-national minimum wage. In September 2019, the Bar Standards Board (BSB) went a step further, prescribing a higher ‘living wage’ of £18,436 in London and £15,728 outside of London per annum, to be revised yearly.
Why? The BSB’s pupillage review working group stated this in its May 5, 2010 report:
“The reasons why (the minimum wage) was introduced are obvious and, in our view, still relevant. The financial stresses on candidates for the Bar are considerable. The prospect of receiving no payment during pupillage would, we have no doubt, act as a further deterrent to recruitment, which would be additional to the inherent cost of the BVC/BPTC (compulsory qualifying exams for admission), and the uncertainty of getting any pupillage at all.
"Pupillage would be restricted to individuals whose personal circumstances permitted them to work for at least six months, if not twelve, without payment. The reputation of the Bar as an open, accessible profession would be severely damaged.”
The Bar recognised, correctly, that unpaid or underpaid pupillages would only give a leg-up to candidates who could already stand on their own two feet, financially speaking. Poorer applicants who were otherwise talented would lose out. It was a moral as well as an economic and social concern.
Critics also often argue that a minimum wage will shrink the pool of pupillages. It is true that in England and Wales, the number of pupillages declined after 2003, and that the mandatory minimum must have played some part. However, this was not the only reason for it. The BSB’s own report paints a complex picture of the situation.
The BSB’s report cited a 2007 survey, for example, which found that the number of pupillages was also driven by the availability of work for those pupils. This also pointed to a gulf between pupillages for publicly-funded work (where incomes were low and less work was available for new pupils) and privately-funded work (where incomes were higher and where pupils were often paid well above the minimum already).
Most interestingly, the BSB also made note of the fact that since the minimum was implemented, “pupillage has increasingly been regarded as an investment by chambers in their own future” and that “training is almost certainly taken much more seriously both by chambers and the pupils”. It did not go over their heads that pupils were more than just overhead.
In other words, paying pupils fairly had the effect of actually improving the quality of pupillage, another favourite bugbear of lawyers in the Malaysian Bar who frequently complain of both lackadaisical pupils and masters. Perhaps goose and gander might find some common good after all?
NICHOLAS WONG is an advocate and solicitor with an MSc in international public policy. He is also part of the Young Lawyers Movement (YLM). He was once an intern journalist with Malaysiakini.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
