Historical Context

A. Origins of Legal Education

For historical reasons the English legal profession has considerable authority in relation to the law curriculum.^[844] Whereas, on the European continent, the universities created the modern law, in England it was created by the judiciary and the profession in the Inns of Court.^[845] The medieval Bar required attendance at lectures and debates led by senior practitioners, participation in moots as a part of the dining tradition and taking notes in court as a condition of call.^[846]

The fifteenth-century Inns of Court were collegiate, with conditions of life similar to those of modern Oxford or Cambridge universities.

B. The Vocational Stage

i. Controlling Entry to the Legal Professions

In the nineteenth century the profession began to use educational requirements, particu­larly examinations, to control entry. The Law Society instituted examinations in 1836 to control unqualified practice. The Solicitors Act 1860 introduced a three-tier examina­tion at the beginning, middle and end of articles. The preliminary examination included Latin. Formal training for the Bar began in 1852 when the Inns of Court standardised training by creating the Council of Legal Education but examinations were introduced in 1872. Passing an examination became compulsory in 1872 but the process leading to it was haphazard.^[848]

Firm ‘vocational stage’ requirements developed in the twentieth century.

The use of educational requirements to control entry to the legal profession was often blatantly discriminatory. This is demonstrated by the efforts to ensure that women did not qualify as lawyers. In 1903, the Benchers of Gray’s Inn refused to admit Bertha Cave as a law student. In 1913, the Court of Appeal held that the Law Society could refuse to register four female graduates for its examinations. In doing so the court cited medieval authority ‘that the law will not suffer women to be attorneys, nor infants nor serfs’. ^[850]

After the First World War the Law Society revised its view. It supported the Sex Disqualification (Removal) Act 1919, following which a trickle of women entered the legal profession. Helena Normanton began practice as the first woman barrister and Carrie Morrison qualified as the first woman solicitor in 1922.^[851] Numbers of women increased from the 1960s onwards. In the 1990s, women became a majority of law graduates and, gradually, the majority of those in training contracts.

ii. The Vocational Courses

The Bar and Law Society have historically prescribed different vocational courses for aspiring practitioners. By the 1970s all intending solicitors, students from university or those completing four-year articles, had to pass professional examinations. These were divided into Part I, to be taken by for non-graduates, and Part II to be taken by both graduates and non-graduates. Vocational preparation for professions generally seeks a balance between ‘scientific knowledge’ (‘knowing that’) with client interac­tion skills (‘knowing how’).^[852] The early vocational courses were bastions of ‘knowing that’.

Until the 1990s, the vocational courses adopted a similar doctrinal approach to degree courses. Different subjects were introduced such as Company Law for solici­tors and Evidence for barristers, but often university subjects were repeated. From 1969 the Bar course was remodelled^[853] and the Law Society Finals (LSF) course was made more practical in 1982. They still provided somewhat dubious preparation for practice. The 1982 LSF was based on preparation for the typical firm, a ‘four partner firm in Oldham’ but, by 1992, 70 per cent of trainees worked in large firms dealing with commercial law.^[854] Neither of the vocational courses, at this stage, paid much attention to ethics, although the US, Canada and Australia had already incorporated clinical or skills components in the education and training of lawyers.

The vocational courses adopted something like their current form with the intro­duction of the Bar Vocational Course (BVC) in 1989 and the Legal Practice Course (LPC) in 1993. The new vocational courses were influenced by developments in other common law countries and the early signs of a new emphasis on skills in universities. The new vocational courses had broad aims, aspiring to provide students with such knowledge, skills and attitudes to prepare them for pupillage and future practice.

The new Bar course would ‘emphasise the importance of being able to practice in a culturally diverse society, communicate effectively with everyone involved in the legal process, and of recognising the role of other professionals and their expertise’.^[855] The new vocational courses focused on ‘transactions’, requiring students to work through realistic, simulated legal processes, drafting paperwork, interviewing each other as clients and so on. They also aspired to ‘inculcate a professional approach to work and to develop in students a respect for the principles of professional conduct’.^[856]

The curriculum of the vocational courses was built around the ‘legal skills, of drafting, research, advocacy, interviewing and negotiation’ (the DRAIN skills).

Although the new vocational courses gained general approval, continuing com­plaints from practitioners about the defective knowledge of pupils and trainees^[857] forced the professional bodies to reintroduce more substantive material, reducing time for practical work.^[858] In the more frank analyses, both skills and ethics became increas­ingly marginal on the courses.^[859] The LPC was revised in 2009 to implement changes recommended by the Law Society Training Framework Review. The Bar course was re-launched as the Bar Professional Training Course following the report of the Wood Working Group.^[860] The changes made are considered below.

C. University Legal Education

In the mid-1800s a select committee urged the development of law in the universities. Identifiable law programmes combining philosophy, theory, practice and reform, emerged at Oxford, Cambridge and London towards the end of the nineteenth century.²² The ‘University route’ into practice was established in 1756 when the Bar introduced a two-year exemption from the qualification period for entrants with a university degree. The aim was to attract higher status entrants. The Law Society fol­lowed this lead in 1821. In the 1960s the ‘University route’ overtook five-year articles of clerkship as the most popular way to qualify as a solicitor. The profession then abandoned the five-year route, having accepted the recommendation of the Ormrod Report that the legal profession should be a graduate entry occupation.²³

The context of legal education began to change with the 1960s expansion of higher education and the creation of the polytechnics in the 1970s. In 1938 there were around 1,500 students studying law at university. In 1970 there were 5,000.²⁴ Substantial num­bers of qualified lawyers and practitioners were recruited as academics, stimulating adoption of a more practical perspective. It also made possible the growth of so- called ‘clinical’, or practical approaches. These included students being involved in real cases at university law clinics, Citizens’ Advice Bureaux and the like.

III.