Does the Legal Education and Training Review live up to its billing?

There is one quote in the long-delayed Legal Education and Training Review report that gives the game away – perhaps accidentally. ‘It became clear,’ say the authors, ‘that removing some significant parts of the system, such as training contracts and pupillages, would not be acceptable.’ One must assume, then, that the reviewers accepted their remit would be strictly circumscribed at the outset. Was it not their job to decide what ought to be ‘acceptable’ – or at least actively considered? Seemingly not.

The report rejects a radical overhaul of the system in favour of what is described as ‘incremental reform’. It proposes set standards in assessment across all education and training providers and more flexibility in how people enter the legal profession.

That could mean the development of apprenticeships; new forms of workplace training; and a new model for allowing non-graduates to become solicitors and possibly barristers.

The report notes ‘considerable dissatisfaction’ among aspiring pupils and trainee solicitors who spend large sums of money ‘in pursuit of a career that they are never likely to achieve’.

Changing the pathways to the profession, it argues, will reduce ‘such a waste of human and economic resources’.

New entrants should also be given more training to plug skills gaps in professional ethics, communication, management, and equality and diversity awareness.

Noting that ‘the lack of variety of models of vocational training for solicitors and barristers restricts development of a more competitive market’, the report calls for:

• The further development of apprenticeships to the level 7 qualification for intending solicitors;
• Development of new forms of training integrating more of the vocational stage with workplace training;
• Alternative ‘work-based learning pathways through the training contract’ and the development of additional alternative pupillages; and
• Assessment of the viability of a model that would exempt solicitors and ‘potentially’ barristers from the requirement for a three-year degree.

Perhaps it is because the report does not chew up much ‘turf’, that the principal stakeholders are equally sanguine about its findings. The system is not ‘broken’, therefore, ‘don’t fix it’.

Such a message was never going to be universally welcomed, and outspoken client watchdog the Legal Services Consumer Panel was quick to voice its disappointment.

Panel chair Elisabeth Davies described the report as a ‘missed opportunity’, because it fails to heed calls for a reaccreditation scheme for solicitors. Davies claimed consumers already assume that solicitors are revalidated and suggested ‘protectionism’ in the profession was responsible for its omission from the LETR.

‘Introducing periodic reaccreditation in high-risk areas of law is the single biggest thing the review could have done to bolster consumer confidence in the quality of legal work, so we’re greatly disappointed this is missing from the proposals,’ she said.

‘After a long fight, reaccreditation was introduced in medicine to benefit patients, but sadly it’s been rejected in law because surveys of practitioners show they don’t want it.’

Davies praised elements of the report calling for more training in ethics and client-care skills, a revamp of CPD and more robust voluntary quality schemes. And she described the LETR as ‘an important staging post’ in an ongoing process to reform education and training for the modern market.

But she emphasised that lawyers need to change their attitude towards education once they have qualified. Davies said her experience of being a member of the LETR reference group left her with the feeling that lawyers ‘don’t fully buy in to the need for change’.

She added: ‘It seems to me that the majority of solicitors and barristers are not championing reform. There was noticeable irritation at the very notion of the word "consumer", concerns that the profession will become more regulated, and I sensed concerns that change would lead to unwelcome scrutiny and transparency.’

SRA chair Charles Plant, meanwhile, hailed the report’s message that law courses should be tailored to allow non-graduates a route into the solicitors’ profession. This is happening to some extent anyway, of course, through the Chartered Institute of Legal Executives and the present government’s enthusiastic embrace of legal apprenticeships.

Plant told the Gazette he was ‘all in favour’ of a return to the days of the direct intake of school-leavers and a three-year exempting degree model to reduce the cost of qualification.

‘There is a very strong view from all sides that non-graduate entry has to be seriously looked at again,’ he said. ‘At present, if it’s a graduate entering the profession, the majority of students will have a loan of £30,000 just to have obtained a degree. Then there is the Legal Practice Course or a two-year course and more borrowing. If you go straight into a solicitors’ firm, as used to be the case after A-levels, you’re not incurring those debts.’

Non-graduate entry qualifications and alternative training contracts will be central to the SRA’s discussions about its response to the LETR, Plant confirmed.

Plant admitted the LETR, the first sector-wide review for 42 years, would disappoint those who were looking for ‘fireworks’, such as any proposal to ditch the training contract.

‘It’s certainly not bringing forward sensational headlines [but] I don’t think it’s a damp squib. It’s highlighting areas for stakeholders and regulators, saying you need to inject more flexibility into courses to achieve specific outcomes which will ensure quality.

‘We need to have a hard look at the two-year training contract and parts of the LPC. We need to think of every conceivable way people can get on courses and continue to make a living. It could change the system significantly.’

Plant, a former partner at international firm Herbert Smith, said colleges and universities should make clearer to people entering the profession their chances of securing a training contract.

He added: ‘Far more information should be given to students so they are aware and informed. Even at 18, it could be that people don’t understand what the problems might be in obtaining a training contract.’

But Plant revealed that the SRA is unlikely to endorse an aptitude test for students applying for a place on the LPC. The Bar Council has already proposed a test for the Bar Professional Training Course (BPTC), to improve the quality of learning and save prospective candidates the cost of sitting an expensive course they are unlikely to pass.

But the LETR concludes that it is not clear the benefits of aptitude testing outweigh potential costs and risks, and calls for a ‘moratorium’ on their development.

Plant added: ‘I suspect [the SRA] view will be that we do not wish to see an aptitude test as there are issues over equality and diversity.’

The Law Society, meanwhile, also stressed that potential entrants to the legal profession must be given more and better information before embarking on costly programmes of study. Chief executive Desmond Hudson said there is an oversupply of graduates looking for careers in the law but who lack specific skills required by firms and are not sufficiently briefed about the realities of securing a job.

He said most of the recommendations are commendable and deserve the profession’s support. However ‘a number of strategic themes deserve further debate and consideration’, he stressed.

‘Educational establishments which are privileged to deliver qualifying law degrees are leaving quality assurance to the profession,’ said Hudson. ‘The feedback we are getting from law firms shows that graduates are lacking the skills expected of them when they commence employment.’

The Society shares the report’s concerns about the need to avoid the profession becoming more socially exclusive. ‘Changes in society and in particular the costs of third-level education mean that it is ever more important that the profession reflects the society from which it is drawn and serves, while at the same time ensuring the maintenance of high standards. Additional pathways to qualification need not pose a risk to standards,’ Hudson added.

However he warned of the regulatory cost implications of a multiplication of pathways. He said the Society will remain engaged with the SRA and other stakeholders as recommendations are developed into proposals.

Chancery Lane agreed with the report’s recognition of the need for improvement in continuing professional development regimes, recognising that any reforms must be practical and effective for small practices, as well as for large organisations.

Hudson added: ‘We are anxious to ensure that the practitioner perspective is central to the implementation of the recommendations. We will be consulting with the profession at every stage of the process.’

However he cautioned that, at a time of unprecedented change in the profession, ‘regulators must understand that the pace at which reform of legal education and training can be accommodated by the profession is restricted’.

One notable conclusion of the report is that training for barristers and solicitors is almost certain to remain separate, following the review’s rejection of a common professional course.

While noting that the gap between what some solicitors and barristers do has narrowed – as a consequence of higher rights and public access – the report acknowledges that reforms to the BPTC and LPC have tended to increase the divergence of training.

Research found ‘quite a high level of resistance’ from some quarters of the profession even to the notion of complementary or inter-professional training, such as module-sharing.

Just over 40% of barristers offered some support for ‘greater common training across the LPC/BPTC’, compared with nearly 70% of solicitors.

The Bar Association for Commerce, Finance & Industry proposed a ‘more radical approach’, with common training as part of a more integrated process akin to an apprenticeship model.

However the report adds that, although common training might create ‘some limited economies of scale or scope’, it is not clear that it would significantly reduce cost.

While common training could help enhance quality in some areas, for example advocacy training for solicitors, the report says the change would risk some loss of specialisation or a reduction to a common core in others, particularly for the bar.

The report is satisfied with the standard of training given to barristers through the BPTC and the pupillage, despite mixed opinions from its research: 39% of barristers said the course was fit for purpose, while 31% said it was not.

Pupillage was also seen as good thing – 58% of barristers ‘completely’ disagreed with its abolition. Despite the number of debt-ridden students finishing bar school without pupillage, the report does not recommend that students taking the BPTC secure a pupillage before doing so.

However it recommends that the BPTC place more emphasis on the skills needed for alternative dispute resolution, particularly mediation advocacy, and that advocacy training in general should pay greater attention to preparing advocates to appear against litigants in person.

The report notes resistance to prescribed CPD, saying that mandated schemes are seen by some members of the bar and others as ‘infantilising’. Critics argue that ‘professionals do not need to be told to do CPD; learning and researching are integral to the role’.

Bar Standards Board director Dr Vanessa Davies said she was pleased that the LETR report recognises the good standard of the present system, but said it identifies ‘plenty of challenges’ for the future.

Bar Council chairman Maura McGowan said the bar will ‘properly consider and digest’ the review before responding fully. She added: ‘A number of proposals relating to training for the bar appear to be sensible and rational developments of legal training, in keeping with the emerging legal services infrastructure.’

But she stressed: ‘Much of this work was already under way, either preceding the LETR or in tandem with it. We will take time to examine carefully the full impact of the recommendations and provide our own suggestions for improving the system in due course to ensure that our collective objectives can be met.’

CILEx, meanwhile, stressed that it has already embraced many of the report’s recommendations.

CILEx president Nick Hanning said: ‘This is a valuable piece of work. I’m pleased to see the report gives mainstream recognition of CILEx’s approach over the last 50 years, and as we continue to lead the way with apprenticeships it is good to see these are highlighted.’

In a speech last Thursday, Hanning claimed that CILEx and its regulatory body ILEX Professional Standards have already embraced much of the outcomes-based regulation the report calls for.

However, he challenged the report for its allegedly muddled approach to licensing paralegals, declaring: ‘The proposed certification/licensing scheme has all the hallmarks of an expensive regime without the guaranteed quality assurance the public would expect from such a scheme. The report fails to recognise CILEx represents around 12,500 paralegals, the largest number of regulated paralegals in the UK, whom consumers can rely on. They are held to the same professional and ethical standards as lawyers, with access to development, qualifications, and a diverse choice of career destinations.’

Professor Nigel Savage, president and provost of the University of Law, is among those who does not necessarily believe the report will have revolutionary repercussions for legal education and training. Noting that the review contains ‘relatively few surprises’, he stressed: ‘The way we buy and sell legal services is undergoing radical change and it’s important therefore that those emerging from law schools are properly prepared to respond to the challenges. The major issue now is what the regulators will do with the report and how, if at all, they use it to deliver their own strategic plans.

‘The UK legal services industry is one of our greatest strengths as an economy, with the UK at the heart of an increasingly global legal system. Meanwhile, the growth in popularity of alternative business structures means that consumers are now buying legal services in different ways. Therefore it is vital that legal training supports this growth and is relevant to these changing needs.’

Echoing CILEx, Savage insisted that the University of Law (Europe’s biggest legal trainer) is already delivering most of what the report recommends, ‘particularly in terms of professional ethics and flexible training routes’. He added: ‘Also, our industry links and investment in employability support give our students an opportunity to learn about broader business and client servicing skills that will be ever more important in the future.’

Super-regulator the Legal Services Board, in characteristically interventionist vein, has indicated that it expects the frontline regulators to act on the report and will take action if they do not. Chairman David Edmonds described the report’s publication as a ‘milestone, rather than the last word on the subject’, adding: ‘[In] 2010 I challenged the regulators to test whether the traditional models for training lawyers in England and Wales had become outdated.

‘This report underlines the need for greater variety and flexibility of approach to ensure that both new and existing lawyers attain and retain the necessary practical and intellectual skills to serve the public effectively.

‘It also raises questions about the relevance of some of the existing regulatory requirements. We now look forward to hearing the response of the commissioning regulators to the review and seeing practical proposals for action.’

• ‘There is no evidence that the system, or any one professional regimen, is fundamentally "broken". Indeed, there is substantial evidence of the strength of the system, both from domestic and international viewpoints'
• ‘The case for reaccreditation at this stage is regarded as not proven, in light of substantial reforms that could be made to CPD.’
• ‘It is possible the market has already moved to a position where smaller numbers of trainees will be the norm...Competition for recruitment is likely to remain fierce.’
• ‘Provision should be made for random audit of annual CPD plans, and for trigger powers to review CPD across an entity where this [gives] cause to investigate.’
• ‘There was a high level of consistency in the skills and tasks used as part of solicitors’ work in 1991 and 2012. However, the data offers clear indications of both knowledge and skills gaps: professional ethics and legal values, commercial awareness and commercial law. The need to enhance writing skills and communication generally is widely recognised.’
• ‘The report does not propose pushing change towards common training or necessarily greater blending between classroom and workplace, though it encourages experimentation in both directions.’
• ‘Provided specialist accreditation schemes can demonstrate robust membership criteria, and appropriate assessment/audit and review processes, they should be supported by regulation.’
• ‘A wide range of views was expressed... It became clear that removing some significant parts of the system such as training contracts and pupillages would not be acceptable. Often participants said "if it ain’t broke, don’t fix it".’
• ‘The traditional professions of solicitor and barrister will continue to play a significant role, though perhaps one less central than currently. For some new organisations the workforce structure could comprise a smaller core of qualified individuals surrounded by a set of paralegals, trainees of one kind or another and support staff.’
• ‘It is questionable whether the cost of training should be subsidised or borne across the profession.’
• ‘Approved regulators should have formal guidance regarding the offer of internships.’
• ‘It is not clear the benefits of aptitude-based admission testing outweigh the costs and potential risks. This report calls for a moratorium on their development.’
• ‘The report supports continued work on both the merged LPC/training contract approach and the development of higher apprenticeships.’