Problems with the Bar exams were far more extensive than previously reported, the Bar Standards Board (BSB) has admitted as it announced traditional ‘pen and paper’ resits next month.
This was despite a warning from a group of barristers looking to support students that this could breach the regulator’s public sector equality duty and make it vulnerable to legal action.
It has emerged that they proposed an alternative which would instead have seen students assessed orally in groups of eight by two senior barristers asking questions based on a given scenario. This had the support of circuit leaders but not the Bar Council.
In the first week of the centralised Bar professional training course (BPTC) exams last month, according to Pearson VUE – contracted by the BSB to handle the exams in the light of Covid-19 – 89% of students did not have any problems, while 97% successfully completed their exam even if they did encounter some difficulties.
But in a statement last week, the BSB said: “Although we believe that the majority of students were able to complete their exams [last month], it is now clear that around one third of exams were affected by difficulties at some point during the examination period, significantly more than the original estimate from our supplier when the exams began.”
Director-general Mark Neale apologised again to students who were affected by technical difficulties and said the assessments would be run again as pen-and-paper assessments on October 5 (professional ethics), 7 (civil litigation) and 12 (criminal litigation).
Any student will be able to sit them, including those who had deferred until December, and whichever is the better result will stand. However, students have complained that they will not be told their marks from last month first.
There will be a further sitting in December but only for those who do not take the exams in October – those who did will be able to resit in March/April 2021.
After widespread concern in the profession about what was happening last month, around 70 barristers met virtually to discuss what they could do to help, and from them the group of five worked up the alternative.
They were: Bernard Richmond QC, head of Lamb Building, Simon Myerson QC of St Pauls Chambers, Laura Hoyano of Red Lion Chambers, Daniel Barnett of Outer Temple Chambers and Matt Jackson of 10KBW, the latter two being employment law specialists.
In an letter to students , Mr Richmond explained how they were given 48 hours to prepare their proposal and were not allowed to attend the BSB board meeting at which it was discussed or address the concerns raised about it.
“Had we been able to, I believe that we could have worked through them and found an acceptable solution,” he said.
In a Twitter thread, Mr Myerson said this meant that “whatever we proposed could be torpedoed without hearing from us. That isn’t justice and it’s disquieting that a legal regulator would behave in such a way”.
The document sent to the BSB  argued that requiring students to take pen-and-paper exams breached the public sector equality duty and indirectly discriminated against them under section 19 of Equality Act 2010.
The barristers said that by requiring students to attend a test centre and spend “considerable time memorising or re-memorising information”, disabled persons, women, mature students and those of non-UK nationality would be put “at a particular disadvantage when compared with persons without those protected characteristics”.
In a letter to Mr Richmond  last week, Mr Neale said the board did not see how their alternative would cover the full scope of the syllabi, ensure consistency of assessment or be validated by BPTC providers.
“The board is of the view that pen-and-paper sat assessments are not discriminatory and satisfy therefore our equalities duties,” he wrote, adding that there were also potential equality duties issues “from a face-to-face assessment where candidates are put on the spot in front of their peers to answer questions from senior members of the Bar”.
Mr Neale said that, given how many of the 2,200 students may want to retake, it was “difficult to see” that the alternative could be scaled up in time.
He said the board also rejected other possible approaches, including waiving the centralised assessments altogether – which “would not be compatible with our commitments to maintaining standards at the Bar” – and moving to an uninvigilated open-book approach.
“The BPTC is a high-stakes professional qualification and any form of uninvigilated assessment risks the integrity and rigour of the assessment.”
Mr Neale said that, in the medium to long term, the BSB would look to move to “a computer-based means of assessment that is reliable, flexible and rigorous”.
Mr Richmond expressed regret at the outcome but said “I am glad that we tried”. He explained: “I believe our paper has raised serious issues about the fitness-for-purpose of the centralised exams and, in my view, those responsible for them.”
The paper highlighted concerns about inconsistent pass levels year to year and the number of mistakes made in questions.
Mr Richmond continued: “I also believe that the case for open-book examinations is well made out. Memory testing is an outdated method of assessment – the ability to learn by rote in an ever-changing legal world is vastly overrated.
“It is the ability to understand and apply principle that matters. If those setting the examinations are unwilling to understand that, then it may be time for them to make way for those who do…
“The examination is supposedly preparing people for pupillage; sadly, there seems to be a considerable lack of willingness by those setting the examinations to understand and cater for what those of us who provide that pupillage training (and pay for it) actually require from our pupils.”
In his tweets, Mr Myerson acknowledged “the outstanding efforts” of the group Students Against the BSB Exams Regulations (SABER), which had called for a waiver .
“Sometimes a good case loses. In a just system you can appeal. Here, all we can do is stand with you, invite the profession to do the same, and wish you all luck.
“It will be no comfort that you have been dreadfully let down. It might be a crumb that we recognise it. Most of all, we’re sorry.”