The Bar Standards Board (BSB) exam fiasco

The three centralised examinations for the Bar Professional Training Course (BPTC), were set to go ahead back in April. However, these plans were disrupted by the emergence and spread of Coronavirus, and the national lockdown that followed.

In response to this disruption, the Bar Standards Board (BSB) initially postponed the examinations, before moving everything online. This was met with backlash from students and barristers alike, who branded the process discriminatory and unfair, and appealed against the proposals.

After ignoring pleas for an alternative solution, it has now been found that the BSB’s decision to move examinations online was wholly inadequate and fraught with issues. Now, its proposals for pen-and-paper resits from October have also been criticised, with some in the legal sector arguing that this breaches the public sector equality duty.

BSB exams go online

Back in May, the BSB announced that the three centralised exams on the BPTC, including civil litigation, criminal litigation and professional ethics, and the Bar Transfer Test (BTT), would be conducted online. The exams were delivered using Pearson VUE’s “online procuring solution,” allowing those on the course to access the exams remotely.

Immediately, these proposals were rejected by those set to take the exam. In an open letter, with over 300 signatories, the Students Against the BSB Exam Regulations’ group (SABER), voiced their concerns to the BSB.

In the letter, it was argued that the exam proposals were fundamentally “unfair,” as they would  disproportionately discriminate against women, caregivers, and disabled and international students.

The online examination rules were also criticised for being extreme. One clause in Pearson VUE’s terms, even outlined that a student’s online examination would be terminated if “any third party” was “detected” or “overheard in any manner”. This was “irrespective” of whether a person was actually in the student’s location, and would subsequently lead to them not receiving a test score.

Further to this, according to Legal Cheek, SABER also conducted a survey of 335 students, and their response echoed the group’s concerns. It was found that a total of 93% students feared that the proposed online arrangements would detrimentally impact their ability to perform well in the exam. Moreover, 79% had concerns about the reliability of their internet connection, and 73% had concerns that they would not have access to a quiet room for the duration of the exam.

Despite SABER’s appeal for the BSB to alter proposals, the BSB defended its position, and stated that time restraints meant it could not consult with students.

After the exams went ahead, the regulator was hit with a wide range of complaints. Some who sat the exam said they had been locked out, others lost internet connection. Meanwhile, the strict rules surrounding the online exams meant that if a student left the room during the examination, the exam was automatically terminated. Consequently, many were forced to use buckets and bottles to urinate in during the examination.

The legal sector responds

Students who were caught up in the BSB exam fiasco received widespread support from those already working within the legal sector, many of whom expressed their dismay at the way the students had been treated.

Expressing outrage at the situation, Philip Marshall QC of 1KBW, tweeted: “Every practising barrister should be ashamed and frankly outraged by the way in which BPTC students have been treated and some cases degraded by @barstandards and its providers this year. On behalf of us all, I am truly sorry”.

Meanwhile, another barrister commenting on the implicit discrimination within the strict examination rules, said: “Been alerted to some quite astonishing measures being taken for BPTC central exams this summer. How on Earth is this fair to Bar students with children?”

Some barristers even decided to show their support by taking things one step further. Employment law barrister Daniel Barnett of Outer Temple Chambers, set up a Zoom discussion for those affected by the scandal. The panel was made up of Simon Myerson QC of St Pauls Chambers, Claire van Overdijk of Outer Temple Chambers, and Lachlan Wilson of 3PB, Charlotte Hadfield of 3PB and Alice de Coverley 3PB.

BSB admits fault

After months of denial, the BSB has now finally recognised the deeply flawed nature of the online exams. In a statement the BSB wrote: “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”.

Following this, on 11 September, the BSB announced that those who had experienced difficulties accessing the exam, or were unable to sit the exam remotely, will be able to resit the examination.

Further to this, the BSB outlined: “It will also be open to any student who felt that they were unable to perform as well as they might have done because of the conditions in which they sat the exams and to any student who had deferred until December 2020”.

The resits will take place on 5 October, and will be assessed using the more traditional method of pen-and-paper. However,  it has come to light that the BSB rejected alternative proposals, and many within the legal sector have argued that the BSB’s new “solution” in fact raises further issues.

According to Legal Futures, in August, 70 barristers came together to assess the situation and propose a new plan. Five of these 70, constructed an alternative method of examination, which would have seen students orally assessed in groups of eight by two senior barristers.

Bernard Richmond QC, one of the five, said that the group were given a meagre 48 hours to prepare the proposal. It was also revealed that the group was barred from attending the BSB board meeting where the proposal was discussed. The group’s proposal was subsequently rejected by the Bar Council.

The decision to push forward with pen-and-paper resits was also made in spite of the group highlighting that these resits would not satisfactorily discharge the Public Sector Equality Duty. In its paper the group argued that pen-and-paper resists would disproportionately and negatively affect:

• Disabled students
• Students who are non-UK nationals
• Students who are socially and economically disadvantaged

In response to these concerns, Mark Neale, Director General of the BSB, wrote to Bernard Richarmond QC, that the BSB “did not believe” that the pen-and-paper resits were discriminatory.

Reflecting on this decision, Simon Myerson QC of St Pauls Chambers, one of the five who created the alternative examination proposal, wrote in a tweet: “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”.