Official Reports on Legal Education and Training

Between 1970 and 1990 three major reports, by the Ormrod, Benson and Marre Committees, considered legal education. Although, they all touched on the issue of induction to the profession, none focused specifically on professional ethics as a subject.

¹²⁹ G Charles, ‘A revolution in legal education’ The Lawyer 22 March 2004.

¹³⁰ A Mizzi, ‘Lord Woolf criticises City law firms for launching “elite” training consortium’ Law Society Gazette 22 June 2000.

¹³¹ R MacCrate, ‘Preparing Lawyers to Participate Effectively in the Legal Profession’ (1994) 44 Journal of Legal Education 89.

¹³² G Powles, ‘Taking the Plunge: Integrating Legal Ethics in Australia’ (1999) 33 Law Teacher 315; Federation of Law Societies of Canada Task Force on the Common Law Degree (2009) (www.flsc.ca/en/ pdf/CommonLawDegreeReport.pdf).

A. The Ormrod Report

The Ormrod Committee was specifically established to consider the education of the legal profession in England and Wales, reporting in 1971.¹³3 It was Ormrod who endorsed the aim of higher education is producing ‘not mere specialists but rather cultivated men and women’.^{[958] [959] Ormrod welcomed the ‘practically useful’ on law degrees so long as it was ‘taught in such a way as to promote the general powers of the mind’. Ormrod sought better integration of legal education to soundly equip future generations of lawyers.}

Ormrod also recommended increasing the practical content and keeping to a minimum the substantive content of the vocational stage. He favoured providing a stronger focus on continuing education after qualification. Ormrod addressed the problem of securing a more varied intake to the legal profession.^[960] He focused on some very practical ethical issues, such as ensuring that potential entrants from diverse backgrounds were not deterred by the cost of qualifying as lawyers.^[961]

The tone of future debates on ethics was set by Ormrod. He considered that the ‘vision, range, depth, balance and rich humanity’ of ethical practitioners would be fostered by the study of law as a liberal art,^[962] with morality at its core.^[963] Despite his mention of the ‘ethos’ of the profession, the issue of ethics was not specifically addressed by Ormrod. He acknowledged that lawyers needed to ‘grasp... the ethos of the profession’ but saw a problem in reconciling the demand for a ‘learned’ profession with instruction in the skills and techniques essential to legal practice.^[964]

B. The Benson Report

In the late 1970s a Royal Commission under the chairmanship of Lord Justice Benson was asked to enquire into changes to ‘the structure, organisation, training, regulation of and entry to the legal profession’ that were desirable in the public interest.^[965] The Benson Report, published in 1979 stated that:

It is essential that throughout their training students should be impressed with the importance of maintaining ethical standards, rendering a high quality of personal service, maintaining a good relationship with clients, providing information about work in hand for clients, avoiding unnecessary delays, maintaining a high standard in briefs and preparation for trial, promptly rendering accounts with clear explanations and attending to other matters mentioned elsewhere in this report.^[966]

Benson considered that the place to bring together theory and practice was at the vocational stage.^[967]

C.

The Marre Committee was organised by the legal profession to resolve the dispute over advocacy, but undertook a wide review of regulation. The report endorsed the shift to a more practical legal education and proposed a split between skills suited to the academic and vocational stages. It proposed confining those skills with an ethical dimension, such as, ‘an ability to help clients understand the options available to them so that they can make an informed choice of action or direction’,^[968] to the vocational stage. A general list also included ‘an adequate knowledge of professional and ethical standards’,^[969] but this was not assigned to either stage.

D. Reports of the Lord Chancellor’s Advisory Committee for Education and Conduct (ACLEC)

During the 1990s ethics moved higher up the agenda, due largely to the efforts of the Lord Chancellor’s Advisory Committee on Education and Conduct (ACLEC). ACLEC was created to advise the Lord Chancellor on legal education and conduct under the Courts and Legal Services Act 1990. It issued a series of reports on edu­cation and training, beginning in 1996 with one covering the whole process.^[970] This endorsed Twining’s observation that the three, entrenched spheres of influence, the universities, the Bar and the Law Society, led to inertia in developing the curriculum.

ACLEC decried the rigid separation of the initial and vocational stages and proposed that legal education should develop students’ capacities in five key areas. These were intellectual integrity and independence of mind, core knowledge, contextual knowl­edge, legal values and professional skills.^[971] Contextual knowledge included ‘apprecia­tion of the law’s... moral... contexts’ and professional skills included ‘learning to act like a lawyer’.^[972] ACLEC envisaged that the initial stage would contribute to students’ ethical education by paying more attention to ‘the moral quality of law’, with univer­sities deciding what to teach provided they included ‘a proper knowledge of.

Although ACLEC advocated that legal education should imbue ‘the standards and codes of professional conduct’^[975] it proposed that the curriculum should go beyond ‘a familiarisation with professional codes of conduct and the machinery for enforcing them’.^[976] The report proposed that intending lawyers should ‘fully appreciate the essential link between law and legal practice and the preservation of fundamental democratic values’.^[977] This was said to entail commitments:

[T]o the rule of law, to justice, fairness and high ethical standards, to acquiring and improving professional skills, to representing clients without fear or favour, to promoting equality of opportunity, and to ensuring that adequate legal services are provided to those that cannot afford to pay for them.^[978]

ACLEC anticipated negative reaction to its proposals from university law schools.^[979] In the event both the profession and universities were largely unreceptive.^[980]

Similar indifference awaited ACLEC’s proposals for the vocational stage. It pro­posed that barristers and solicitors should follow a licentiate programme common to both for half the vocational year. The licentiate was to involve an element called ‘Professional Responsibility’ including ‘general principles, with projects in the context of criminal and civil procedure and evidence’.^[981] Following the licentiate students would follow their own courses, and a Master’s programme built around a rigorous basic education in common professional values. None of ACLEC’s main propos­als for legal education was adopted, and it was disbanded by the Lord Chancellor, perhaps because it was making insufficient progress.

E. Reviews by Professional Bodies

i. The Law Society

In 1998 the Law Society and Bar Council adopted the ACLEC view that the law degree should stand as an independent liberal education not tied to any specific vocation.^[982] They also adopted a general move towards assessing ‘transferable skills’, rather than legal skills, in higher education.^[983] They added a requirement that students should acquire knowledge ‘of the social economic political, historical, philosophical, moral, ethical, cultural and comparative contexts in which law operates’ to the joint announcement.

Despite the requirement that Law be studied in its ‘ethical context’, no specific con­tent was prescribed. In the meantime, more common law countries were joining the US in requiring ethics in law degrees.^[984] The Law Society consulted on a new training framework in 2001, proposing that ethics join knowledge and skills as core elements of solicitors’ education and training ‘from the cradle to the grave’.^[985] Respondents to a consultation gave almost universal approval to this proposal.^[986] The Law Society convened a group, the Training Framework Review Group (TFRG), to develop the concept.

a. Training Framework Review

The TFRG identified what newly qualified solicitors should know and be able to do when beginning as qualified practitioners. This knowledge and associated skills and capacities were named the Day One Outcomes (‘outcomes’). The idea was that education and training should focus on assessing the outcomes, rather than courses or other processes. TFRG proposed that the conventional stages of the partnership model be abandoned. The only course requirement would be an honours degree, the common currency of European education and professional entry under the Bologna Declaration,^[987] the European blueprint for harmonization of university degrees.

The review took place amid increasing controversy, particularly regarding the hin­drance that the cost of legal education posed to those from poorer backgrounds.^[988] It was proposed that students would not be required to attend a course before taking vocational examinations. A two-year period of work-based learning, completed under the supervision of a solicitor, would also be required. The training contract would, however, be abolished. Students would then be able to complete their training with a period of work-based learning in organisations other than a firm of solicitors.

The TFRG’s proposals mapped onto the existing structure of legal education and training, although not perfectly.^[989] The first of six groups of outcomes re-worked the ‘Seven Foundations’ of the initial stage.

The fifth group of outcomes, personal development and work management skills, and the sixth group, professional values, behaviours, attitudes and ethics, overlap the LPC and work-based learning. None of the content was tied to a particular stage. Allowing a multiplicity of routes to qualification was an explicit aim of the framework. Therefore, degrees and conversion courses for non-law graduates might incorporate the ‘vocational stage’ outcomes, vocational courses might incorporate work-based learning and some of the larger firms might incorporate the ‘vocational stage’ outcomes in the period of work-based learning.^[990]

This was not welcomed by providers of the LPC. Their courses were threatened by the intended flexibility. Nor were they welcomed by some firms, who feared declining standards.^[991] The Chief Executive of the Law Society robustly defended the proposals, arguing that they would increase access to the profession.^[992] It is not clear how the TFRG’s proposals delivered the promise to make ethics central from cradle to grave.

The TFRG’s first group of outcomes, echoing ACLEC, include ‘the jurisdiction, authority and procedures of the legal institutions and the professions that initiate, develop and interpret the law’ of ‘the rules of professional conduct’ and of the ‘values and principles on which professional rules are constructed’. The fact that these out­comes map onto the initial stage, suggests that a substantial programme of ethics could become part of qualifying degrees, but how much time would be spent on each outcome, what activity might be involved or how the profession would check whether the outcomes are met were unresolved and acknowledged by the chair of TFRG to be problematic.^[993]

The Seven Foundations could be revised to reduce the old content and introduce some new, but because of the lack of detail, even academics broadly supportive of the proposals reserved judgement.^[994] Before the TFRG proposals, speculation about a possible ethics curriculum for the initial stage ranged from incorporating professional ethics^[995] to a more gradual progress from ‘general system ethics’.^[996] The TFRG clarified this by proposing the legal profession, the rules of professional conduct and the values and principles on which professional rules are constructed, as material for the initial stage. Because of the open-ended nature of the framework, students would not have to cover this (or any) material in a degree. They could be exposed to some material at the vocational stage. This, though, was hardly ‘ethics from cradle to grave’.

The TFRG established ‘Day One outcomes’ for solicitors, covering the range of things that they should know or be able to do on qualification. It also came close to breaking the stranglehold on access to the solicitors’ profession imposed by the cost of the vocational stage. The TFRG concluded that students would only have to achieve the outcomes, without having to attend courses. This proposal split the TFRG group but was carried by a majority.

In the result the radical implications of moving to outcomes were not achieved. The LPC was split into two stages so that the cost of the second, elective stage could be spread and possibly shared by employers. Most students continued, however, to take the course in a single block. The possible financial savings achievable with an outcomes approach was further diluted when the Law Society was persuaded in the final stages of the TFRG process to specify ‘notional learning hours’. These currently stand at a minimum of 1100 hours for Stage 1 of the LPC and a further 300 hours to the study of Stage 2. That is 100 hours for each vocational elective.^[997]

b. Consultants’ Reports

Following the TFRG the Law Society commissioned a report from academic consul­tants Economides and Rogers on what part ethics should play in the curriculum.^[998] The report recommended that ethics be introduced to the legal education process at the earliest stage possible, and that outcomes that would ensure ‘commitment to legal values and the moral context of law’ be introduced on law degrees.^[999] The report did not propose content or method,^[1000] suggesting further work on ‘how best to introduce ethics and professional responsibility’.^[1001]

The Law Society then commissioned a further consultant’s report from Boon on the form the ethics curriculum would take if introduced at the initial stage.^[1002] This suggested that a suitable framework for degree level study would be:

The study of the relationship between morality and Law, the values underpinning the legal system, and the regulation of the legal services market, including the institutions, profes­sional roles and ethics of the judiciary and legal professions.

The overarching aims of the study of ethics, the report suggested, was to stimulate students to reflect on the nature of legal ethics, equip them to behave ethically and enable them to play an active role in the formation of professional ethics. Some objec­tives consistent with these aims were to:

----- further appreciation of the relationship between morality and law;

---- promote understanding of the role of the legal profession in supporting democracy and protecting justice and the rule of law;

----- provide opportunities for ethical decision-making;

---- promote understanding of the importance of values, including justice, honesty, integrity, critical self-reflection and respect for others; and

---- stimulate reflection on the ethical challenges of practice and lay a foundation for ethical behavior.

The report argued that ‘if the Law Society is to be confident that the specified aims, objectives and learning outcomes are achieved, it is important that a core is deliv­ered and examined discretely’.^[1003] The implications of this proposal were that if, for example, the idea of core subjects was retained, Legal Ethics would become a core subject. The Law Society adopted these proposals as its position on the issue. By this time, however, the power to implement them resided in the SRA.

ii. The Bar

a. The Bell Working Party

In 2004 a working group led by John Bell reviewed the education and training frame­work of the Bar. The remit of the Bell Working Party was to consider the vocational stage, which had been criticised for high cost against the low chance of pupilage and tenancy. The consultation paper the group produced proposed little substantive change. The review was overtaken by the creation of the Bar Standards Board and a BVC review chaired by Derek Wood QC.

b. Neuberger

When the BVC Working Group was in its early stages, a comprehensive report by the Entry to the Bar Working Party, chaired by Lord Neuberger of Abbotsbury, was published. This recommended improving access to careers at the Bar by the less privileged and raising standards of education and practice.^[1004] Among 57 wide-ranging recommendations, including for the introduction of a module on law and lawyers to the National Curriculum in schools, 14 related to the BVC.

Neuberger’s proposals for the vocational course included retaining the length of the course and the policy of open entry, but arranging matters so that students knew in advance whether or not they had pupilage. The most radical proposals were the introduction of a national final examination and having the Bar Standards Board investigate the impact of introducing the requirement of at least an upper second class law degree for entry to the vocational stage. No recommendations specifically related to ethics.

c. The Wood Reports

Derek Wood QC led comprehensive reviews of the BVC, pupillage and post-qualification education, undertaken in sequence. The report on the vocational course recom­mended that it be retitled the Bar Professional Training Course (BPTC).^[1005] It recorded that the large gap between the numbers of students graduating from the BVC and the much smaller number of pupillages was a cause for ‘considerable concern’.

Wood concluded that some students were ‘so far lacking in the qualities needed for successful practice at the Bar’ that they would have no chance of pupillage however many were available.¹⁸¹ He recommended that numbers should not be artificially lim­ited but that students should pass a centrally set aptitude test in analytical and critical reasoning and fluency in English in order to gain access to the course. Students should also pass centrally set assessment by multiple choice and short answer questions.

The Wood Report noted Neuberger’s aspiration that able graduates were not deterred by cost from joining the Bar. It saw no way to reduce the length of the course or the overall cost of reading for the Bar. Wood was, however, concerned that the cost of qualifying, and the vocational course in particular, would dissuade all but the wealthy from trying. This would lead to a loss of able barristers. The cost of the course, and contribution from the profession, compared unfavorably to the situation in France. The report therefore concluded:

[U]nless and until the profession collectively can find a solution to the cost of reading for the Bar, the problems of access, diversity and equality of opportunity will not be solved.¹⁸²

The Wood Report on the BVC also recommended a number of adjustments to the curriculum. These included omitting Negotiation as a separately taught and assessed subject and introducing a new subject, Resolution of Disputes out of Court (including negotiation), as a new taught and assessed subject. One of the most important changes recommended was the introduction of Professional Ethics and Conduct as a separately taught subject.¹⁸³ Professional Ethics is one of the subjects on the BPTC assessed by centrally set multiple choice assessments, along with Criminal and Civil Litigation.¹⁸⁴

VII.