These are the words of Norman Birkett relating a conversation with his clerk as he began pupillage in 1913. How times have changed! In Birkett’s day entry to the Bar was a less formal process and ultimate success depended, it would seem, as much on luck as raw talent. But, naturally, to make a direct comparison between gaining entry to the Bar now and at the start of the 20th Century would be foolish … or would it?

Birkett’s background was modest. Son of a Lancashire draper, his first thought was of the ministry. He had few social advantages, he had no links with the Bar, money was a concern and, even when Birkett had made a start there were those around him, like Philip Guedella and R M Barrington-Ward (both Presidents of the Oxford Union, Barrington-Ward later an editor of The Times), who, it seemed, possessed every gift needed for the Bar but, like so many before and since, failed to make a success of it and left.

Sounds familiar doesn’t it? In many respects, the problems, both real and imagined, that Birkett and his contemporaries faced in 1913 are not unlike those of today’s Bar students. The Bar has for many years been pre-occupied with the issues of access and funding. It is also rightly concerned by the numbers of barristers who leave the profession early in their careers, very often because of financial difficulty. The problem of the relative absence of practical training in Birkett’s day is mirrored by concerns about the future form of training now. In some ways, that such a comparison is possible over a period of almost a century ought in itself to give cause for concern.

We often hear that to survive and flourish the Bar needs to attract and select high quality candidates. This much is obvious. But there are reasons to think that the Bar’s ability to do so will diminish.

First, it is clear that earnings will continue to be squeezed. Those at the criminal Bar are presently aware of how painful this can be. Making a reasonable living at the Bar is clearly set to become more difficult – most especially for those starting out who carry increasingly large debts from degrees and the Bar Vocational Course (BVC). Second, in 2008, those who pass the BVC but do not complete pupillage will lose the right to style themselves barrister. This must be right and will bring the Bar into line with the solicitors’ profession but it will mean that those who pass the BVC and do not get pupillage will have spent, in some cases, tens of thousands of pounds to gain a post-graduate diploma. Although it is too early to tell what effect this will have on numbers seeking entry to the Bar, it will certainly not make the programme more attractive. Third, the re-specification of training for solicitors may well make that route more appealing to intending lawyers – certainly financially. Fourth, given the continual improvement in the grades of qualifications gained at both advanced and degree level, it can only become more difficult to differentiate between candidates on grounds of academic merit for the purposes of pupillage selection. Fifth, the Bar has often been very slow to react to changes that affect it. Training is one such and needs a hard look. Getting it wrong or taking too long about it will have very serious consequences – at present the Bar seems to be reacting to the Law Society’s Training Framework Review rather than taking a lead.

From the quote above, it is clear that Birkett’s initial training was rudimentary and very much “on the job” although, having made it to the Court of Appeal, there can be no doubting his abilities. But the gamble that men like Birkett took in trying for the Bar was in many respects very much less serious than that facing candidates today; a problem both for them and for the Bar.

Consider; is it right, is it even likely that the Bar will continue to attract the talent it needs in order to survive when gaining entry seems set to become an all or nothing gamble; worse than that, a gamble with incalculable odds? The Chairman of the Bar, Guy Mansfield QC has said that the Bar should “offer all students (whether or not they carry on at the Bar) a BVC of ‘real value’”. This is a highly pragmatic statement and should be applauded by everyone. The attempt to enter the Bar is far too costly, the difficulties far too great, and the need of the Bar to continue to attract and successfully select talent far too important to miss the chance to make the BVC a qualification of “real value”. The important question is how?

Clearly, this would rule out any stepping backwards to a world where a degree alone was sufficient – although the related question of whether the qualifying law degree should be retained is being debated. There are of course those who do look back fondly. The nature of the Bar invites it. There are those who think that the Bar is rightly a harsh meritocracy, that “talent will out”, that funded pupillages are a mistake and that the BVC is no advance on the old Bar exams. But such views are retrograde. A modern bar demands modern training to meet modern needs; training at a level suited to the complexities and demands the Bar places on its aspirants. Moreover, it demands training that both respects and rewards those willing to stake their chances on a career at the Bar even where they don’t succeed. Without such training, the days when the Bar may rely on a constant supply of high quality candidates may well be numbered.

Guy Mansfield does not favour a shorter BVC something, this he believes, is something that would “inevitably lower standards” . A working party has been established to review the structure of the BVC but it is too early to say with precision what recommendations it may make. The proposal here is that the BVC becomes a Masters Degree.

The BVC is currently offered at eight Institutions located in Bristol, Cardiff, Nottingham, Manchester, Newcastle and London (3 providers). It is an exacting programme which assesses: conference skills, advocacy, negotiation, drafting and opinion writing, three knowledge areas (criminal litigation, civil litigation and evidence), practical legal research, ethics and two specialist options. Currently, all eight providers award a postgraduate diploma to those who pass. Thus, importantly, the BVC is a postgraduate level course, one that has been referred to as a quasi skills based MBA.

It is a requirement of the Bar Council that the course lasts at least 32 weeks and that over this period students will have a minimum notional study time of 1200 hours (for most of the providers, this seems to average 300 actual contact hours and 900 hours of private study). 1200 hours averages out at 37.5 hours per week which, although not reflective of practise, is very high when compared with other postgraduate programmes. The programme contains 12 separate assessments.

An attempt to transform the BVC into a Masters degree may face opposition from those who consider that, by virtue of being a skills based vocational course, the BVC does not demand the academic rigour necessary for a Masters level course, or that a Masters degree should not have its primary focus on skills. Qualifications, however, are not just about knowledge. They are about what can be achieved by students applying the knowledge a course imparts. For example, the legal definition of murder remains the same whether it is used at GSCE, at A’ level, at undergraduate or at postgraduate level. The difference between these qualifications lies in what students can be expected to do with the knowledge gained, not only in the application of purely academic method but in the development of new skills. Whilst it is true that the BVC in its present form relies a great deal on the knowledge base acquired from the undergraduate law degree (LLB) or graduate diploma (CPE), there is certainly no reason why both the knowledge elements of the BVC and skilful application of that knowledge at the requisite level in a conference, draft, opinion or advocacy submission should not contribute to assessment at Masters level.

Another and related source of opposition to such a move may stem from the considerable history underlying any discussion of legal education and the purpose of legal qualifications. Much of this has centred on the ‘proper’ relationship between ‘the academy’ and the legal profession with the result that it has become extremely difficult to have meaningful debates about legal qualifications without declaring oneself a follower of one or other camp. The traditionalist camp maintains that studying and teaching law is an inherently worthwhile pursuit of academic enquiry and wishes to create a clear division between occupational training and academic study. It has been argued, for example, that attempts to satisfy the demands of the professions may act only to constrain ‘academic freedom’. Members of the other camp, argue that law is a vocational subject and, as such, must recognise the commercial realities that drive legal education and that make it attractive to students and universities alike. At the risk of leaving out all the shades between, there is another way of looking at the issue, which is to say that these arguments set up a false dichotomy; that there is no inevitable or, in fact, that there is simply no conflict between legal academic and professional education, whether as preparation for a professional legal career or indeed any other. No less a figure than the late Peter Birks, described in his Times obituary as one of the greatest English academic lawyers of our time, argued that law schools should not detach themselves from “the law in action, above all from the law in action in the courts”. More importantly, for present purposes, Birks also argued that:

“There is no opposition between serious academic study of law and the needs of the practitioner. The contrary is true … The law and legal education are organically linked and no more than medical science can do without medical schools, neither can dispense with strong law schools in the universities”.

Birks’ essential argument is against a minimalist view of legal education. Legal education cannot, indeed, must not, be “no more than a preparation for a trade”. The dangers of it becoming so are as real for the Bar as for the solicitors’ profession if all that the professions deem important is a vocational year in which students engage in “hollow externalities … where the substance of law is neglected.” One doesn’t have to agree with this somewhat narrow view of the content of the BVC to accept the essential point that academic enrichment of the BVC could only improve it.

As above, these points are not new but emerge out a long lived historical debate. In the 18th century Blackstone had a “twin vision of the university as a provider of both a civilised education and a foundation for professional practice” and a century later the Select Committee on Legal Education saw the “integration or unity of theory and practice … [as being] the paradigm of a liberal legal education”. It has also been noted that during the 20th century academic and professional lawyers drew apart, the Ormrod Report eventually being responsible for an unintentionally rigid separation of academic, professional and continuing education. The 1996 Report of the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC) was the first full-scale review of legal education and training since Ormrod and argued for an integrated, holistic approach to legal education leading to the removal of the barriers between the academic and the vocational. The debate has been continued through the Solicitors’ Training Framework Review.

The relevance of these points to the possible future form of the BVC and to the needs of the profession should be obvious. What steps might need to be taken to achieve a BVC at Masters level can best be illustrated by brief consideration of the QAA descriptor for such a qualification. The descriptor states that, typically, holders of the qualification will be able to:

(a) deal with complex issues both systematically and creatively, make sound judgements in the absence of complete data, and communicate their conclusions clearly to specialist and non-specialist audiences;

(b) demonstrate self-direction and originality in tackling and solving problems, and act autonomously in planning and implementing tasks at a professional or equivalent level;

(c) continue to advance their knowledge and understanding, and to develop new skills to a high level;

These requirements might easily have been taken from any of the aims and ethos statements BVC providers are required to draft. Indeed, BVC providers would be failing students who did not possess these abilities at a suitable level to enter pupillage or other of the qualities and transferable skills necessary for a range of employment that the descriptor further sets out:

(a) the exercise of initiative and personal responsibility;

(b) decision-making in complex and unpredictable situations; and

(c) the independent learning ability required for continuing professional development.

Somewhat more problematic perhaps is the requirement that a Masters degree is awarded to students who have demonstrated:

(i) a systematic understanding of knowledge, and a critical awareness of current problems and/or new insights, much of which is at, or informed by, the forefront of their academic discipline, field of study, or area of professional practice;

(ii) a comprehensive understanding of techniques applicable to their own research or advanced scholarship;

(iii) originality in the application of knowledge, together with a practical understanding of how established techniques of research and enquiry are used to create and interpret knowledge in the discipline;

(iv) conceptual understanding that enables the student:
· to evaluate critically current research and advanced scholarship in the discipline; and
· to evaluate methodologies and develop critiques of them and, where appropriate, to propose new hypotheses.

These elements might best be evidenced through completion of a dissertation. Teaching and assessing skills at Masters level is not new. For example Nottingham Law School (NLS) offers two highly regarded LLMs that comprise of legal skills. The Nottingham Law School’s LLM in Advanced Litigation has a syllabus that covers case analysis, interviewing, negotiation skills as well as advocacy, all of which are presently taught on the Bar Vocational Course.

The Higher Education system uses points and levels to indicate the requirements and content of particular qualifications. In order to obtain a given qualification at HE level, a certain number of points must be obtained. For example, a postgraduate diploma is deemed to be worth 120 points and a Masters 180. As previously stated the BVC confers a postgraduate diploma and carries 120 points. In principle at least, it is possible to redesign the content of the BVC so as to increase its value to 180 points. How the needed 60 points would be obtained is certainly open for discussion.

One possibility would be to require students to undertake more options or to study additional subjects or skills. Alternatively, as above, students could be required to undertake a dissertation; such work being a normal component of a Masters degree. In reality a combination of these would probably be required together with greater demands to apply and demonstrate legal knowledge in the exercise of the skills.

One further point is that a BVC that incorporated a dissertation could not be completed in the 32 weeks it now occupies. The course would have to be extended to a full year in order to give students the time needed to conduct research and write up their findings.

What advantages would this bring? For students it would undoubtedly make the BVC more attractive. Many students presently undertake LLM’s either before or after the BVC in the belief that having some specialist legal knowledge may make them more attractive to Chambers. Increasing the value of the qualification in this way would also represent a better investment in education for those unsuccessful in obtaining pupillage. Northumbria University has introduced a scheme whereby those enrolling on the BVC students may choose to enrol at the same time onto a specially designed Masters programme, the LLM Advanced Legal Practice. This qualification affords a choice of legal specialism, its chief components being completed after the main BVC assessment are over allowing, potentially for qualification before October pupillages begin. It has proved very popular.

For the Bar creating a BVC “of real value” in this way would provide a more highly trained and better qualified pool of applicants from which to chose as well as another means by which to assess ability. It would institute a unique form of qualification, one that would more properly reflect the link between the serious academic study of law and the abilities and intellectual attainments required for successful practice at the Bar; a qualification that would also set the Bar apart from other professions and in the mind of the public by the level of its entry qualification.

Whether the BVC review working party will recommend such a course is not known. A consultation paper is due soon. Birkett was obliged to plead with his clerk for time to gain “a little practical experience” before receiving his first brief. Later, when he had become enormously successful he was apt to quote Bacon’s aphorism that “every man is a debtor to his profession.” This is perhaps true. But the professions also owe a debt to those who strive to gain entry. The Bar now offers much more than “a little practical experience” but we can and we should do more.

Deveral Capps LLB, LLM, Barrister, is a Principal Lecturer and Director of Bar Programmes at Northumbria University. James Gray BA, LLB, Barrister is a Senior Lecturer and Programme Leader for the Bar Vocational Course at Northumbria University.s.