The current LSET systems

2.4     The system for educating and training lawyers in England and Wales is mature and well-established, having evolved over the last 150 years from an unstructured apprenticeship model to a relatively sophisticated collection of training regimes. These reflect in large part an accretion of practices over time. Two major attempts have been made to review the system of legal education for the professions of barrister and solicitor in the last half century: by both the Ormrod Committee in 1971 and the Lord Chancellor’s Advisory Committee (ACLEC) in 1996.

2.5     Many of the key structures for barristers and solicitors have remained largely unchanged from that first review. It was the Ormrod Report which:

• determined that the law degree should become the normal route of entry to the profession;
• proposed a ‘Common Professional Examination’ (now Graduate Diploma in Law or GDL) for non-law graduates;
• emphasised a linked but separate vocational stage of training and
• proposed the need to develop a system of structured ‘continuing education’ (Ormrod Report, 1971).

2.6     The implications for the LETR of the various reports since Ormrod are raised in the Literature Review. This chapter sets out the structure of the current regimes of education and training adopted by all the regulated professions, not just barristers and solicitors, and therefore adopts a broader perspective than either Ormrod or ACLEC. Nevertheless, it is helpful to follow the three-part linear process created by Ormrod, to consider:

• programmes and structures at the academic stage;
• programmes and structures in professional education, and
• post-qualification training and specialisation.

2.7     This division does not neatly reflect the approach of all legal professions. Structures for CILEx members and licensed conveyancers, for example, ‘blend’ education and training concurrently with workplace experience. Such approaches are addressed primarily under the heading of ‘Education and Training for the Smaller Professions’, below.

Programmes and structures at the academic stage

2.8     Although it is not essential to have a degree in law to practise, the law degree remains, numerically, a significant route into the sector, particularly for those entering the solicitors’ and barristers’ professions. Law graduates continue to be the largest single group of entrants (42.8% of newly admitted solicitors in 2010-11 and, it is estimated, about two-thirds of those entering pupillage at the Bar[1]). Notaries and IP attorneys constitute the other predominantly graduate professions. The majority of notaries are also solicitors, and will frequently possess law degrees on that basis (Master of the Faculties, 2012), while patent attorneys, by virtue of the technical nature of their work, tend to be graduates in science and engineering fields. Registered trade mark attorneys are more likely to be non-law graduates, but this may be changing, and law graduates are a growing group within CILEx membership, following the development of a graduate fast-track route to qualification, and are present in lesser numbers amongst costs lawyers and licensed conveyancers.[2]

2.9     A brief comparison of academic and vocational qualifications, including those of the smaller professions, [3] appears in Annex I at the end of this chapter.

The qualifying law degree

2.10     A qualifying law degree (QLD) is one that is recognised by the BSB and SRA as satisfying the academic or initial stage of qualification as a barrister or solicitor.

2.11     Demand for QLDs has continued to grow across the higher education sector since the 1960s, tracking the general expansion of UK higher education. Today, accounting for all single and joint honour variants available, there are over 600 QLD courses available across the UK and the Republic of Ireland. These include joint honours degrees; sandwich degrees; part-time degrees; degrees which incorporate parts of the qualification regime of other jurisdictions, such as the Anglo-French double maîtrise and degrees which incorporate the Legal Practice Course (LPC), the Bar Professional Training Course (BPTC) or CILEx and paralegal qualifications.

2.12     To be a QLD, the programme must satisfy the requirements of the Joint Announcement on Qualifying Law Degrees (JASB, 2012; SRA, 2011a).[4] QLDs primarily require 240 of the total of 360 credits (assuming a typical three-year degree, or part-time equivalent) to be in law subjects. This includes the seven Foundations of Legal Knowledge (the Foundation subjects), which together must amount to no fewer than 180 credits; legal research, and a requirement for some legal study in the final year (at level 6).[5] Although titles will vary by institution, the Foundation subjects are public law (constitutional, administrative and human rights); EU law; criminal law; obligations (contract, restitution and tort); property law; equity and trusts.

2.13     There is little prescription of how subjects are organised, or the stage of the degree at which they should be delivered, so the same subjects may be taught at any of levels 4, 5 or 6 by different institutions. In practice, however, the majority of the Foundation subject credits tend to be concentrated in the first two years of the programme.

Graduate Diploma in Law

2.14     The Graduate Diploma in Law (GDL) is offered by 44 institutions^[6] and in full time (one year) or part-time (two year) formats. Its primary function is to deliver the seven QLD Foundation subjects to graduates of non law degrees although there is provision for one additional subject, which may be prescribed by an institution, a taught module or a research project (JASB, 2012). Although the course is postgraduate in time, all teaching is at level 6. There is a common belief that GDL students are preferred by recruiters by reason of maturity or the breadth of learning and experience conferred by their undergraduate degree subject. In 2011 just under 15% of admissions of solicitors to the Roll were GDL graduates (Fletcher, 2012). Some law firms, particularly in the City, explicitly advertise that they recruit QLD and GDL graduates in a roughly 50:50 ratio. It is more difficult to establish an equivalent figure for the Bar although, as noted above, it is believed that as many as a third of pupils are GDL graduates.

Programmes and structures in professional education

The Legal Practice Course

2.15     The Legal Practice Course (LPC) was introduced in 1993/1994 to replace the Law Society Finals Course. In its current iteration, it is offered by 29 institutions[7] and in full time (one year) or part-time (two year) formats. In 2012/2013 there are 6,035 full-time and 2,793 part-time students enrolled on the course (both years).[8] The SRA does not prescribe a National Qualifications Framework (NQF) level for the course: consequently institutions may place it at level 6, or level 7, or a combination of the two.

2.16     The LPC consists of a mandatory stage 1 and elective stage 2 which are detachable, allowing students to transfer to institutions offering different electives or to combine study for stage 2 with working (SRA, 2013b). Compulsory components, for which outcomes are prescribed, are business law and practice; property law and practice; civil and criminal litigation and the skills of practical legal research, writing, drafting, interviewing and advising, and advocacy (SRA, 2011b). Students must also cover wills and administration of estates, taxation and professional conduct. For stage 2, students are required to take three elective subjects. There is a small number of institutions which offer an ‘exempting law degree’ in which the LPC subjects occupy the non-compulsory credits in the JASB framework. In this format students are credited with a QLD and an LPC having successfully completed the course. In recent years it has also become comparatively common for institutions to allow students to ‘top-up’ their LPC to a Master of Laws (LLM) with a short period of additional study or a research project.

2.17     The LPC was originally designed to be completed before the student began a training contract. It is, however, possible for a part-time LPC to overlap with a training contract (SRA, 2013b) and one national law firm is currently piloting a model in which the electives are disaggregated and combined with the early stages of the training contract.[9]

2.18     Larger firms tend to stipulate the LPC provider which their recruits must attend, and the elective subjects they must study. A number of firms, in consortia or individually, have worked with LPC providers to create bespoke courses or electives in which firm precedents are used and where members of the firm may contribute to the teaching to promote consistency between classroom and practice. In a move to accommodate different kinds of practice, some providers offer streams representing City, general commercial or high street/legal aid practice in which the compulsory subjects are taught in the relevant context. A short form LPC is also available to BVC and BPTC graduates who have not completed pupillage and are therefore not eligible for transfer into the solicitors’ profession through the Qualified Lawyers Transfer Scheme (SRA, 2013a).

The Bar Professional Training Course

2.19     Following the Wood Review (BSB, 2008), the Bar Vocational Course (BVC) was replaced in 2010 by the Bar Professional Training Course (BPTC). The BPTC is offered by eight institutions[10] and in both full-time and part-time formats. Its outcomes are broadly aligned with NQF level 7 (BSB, 2012a; 2012b). One QLD provider offers an exempting degree which also includes the BPTC. As with the LPC, some institutions permit top-up to an LLM.

2.20     Compulsory components are civil litigation, evidence and remedies; criminal litigation and evidence; advocacy; opinion writing; drafting; conference skills; resolution of disputes out of court (ReDOC) and professional ethics. Writing skills, casework skills, fact management, legal research, management and interpersonal skills are embedded in the curriculum. Students also study two optional subjects. During the BPTC, students are also expected to attend a total of 12 qualifying sessions run by the Inn to which they belong.

2.21      In 2010-2011, of the 1,682 enrolled, 1,113 students passed the course (Bar Council/BSB, 2012). On successful completion of the BPTC, the student can be called to the Bar. However, he or she is unable to practise as a barrister without subsequently completing pupillage.

CILEx qualifications

2.22     The qualification scheme of the Chartered Institute of Legal Executives follows a very different model. There are two distinct stages, and those who do not wish to progress to Chartered status may terminate study after the first stage, or select specific courses as stand-alone paralegal specialisms. The qualifications are offered by colleges or by distance learning (CILEx, n.d. a[11]). Indications are that the number of institutions offering face-to-face tuition at the second stage may have declined in recent years,[12] reducing study options in some parts of the country. In a small number of cases exemptions have been designed into foundation degrees or QLDs.

2.23     The first stage of qualification is the Level 3 Professional Diploma in Law and Practice (CILEx, n.d.c). This can be entered from GCSE or from an introductory CILEx level 2 certificate. There are seven mandatory law units of study. The mandatory units are: introduction to law and practice; contract law; criminal law; land law; law of tort. In addition students also have to complete units in client care skills and in legal research skills. Students also take three related units of their choice, two of which must be practice papers linked to law subjects studied at level 3, in topics such as employment law; family law and conveyancing. On completion of this stage, students can apply for associate membership status, at which point the CPD obligation begins. QLD graduates may also enter at associate member grade.

2.24     The second stage is the Level 6 Professional Higher Diploma in Law and Practice (CILEx, n.d.c). This, in contrast to the broad-based LPC, is a consciously specialist course of study. Students complete further units in research and in client care, together with one legal practice unit and its related law unit and two further law units. The law units available include all of the Foundation subjects as well as more specialist topics such as landlord and tenant and planning law. On completion of this stage, students can apply for graduate membership status. LPC and BPTC graduates can enter at graduate member grade and need only satisfy the qualifying employment requirements to achieve Chartered status (CILEx, 2012).

2.25     CILEx members cannot at present undertake reserved activities other than under the supervision of a solicitor. There is no formal restriction (other than the ethical obligation to act in areas where one is competent) on their ability to undertake unreserved activities. Some CILEx members are employed within the unregulated sector, though the numbers are not thought to be large.[13] If they do not already have Chartered status, career progression for these individuals may be limited if they are not under the supervision of an authorised person under the LSA 2007.

Education and training for the smaller legal professions

2.26     Other routes into the regulated workforce comprise a mix of graduate and non-graduate entry. The notarial and IP professions are (effectively) graduate entry (Master of the Faculties, 1998; IPReg, 2011; ITMA, 2012). The specialist qualifications for notaries and registered trade mark attorneys are validated and delivered by universities. They are postgraduate in time, and accredited and quality assured by university processes. The training for patent attorneys is seen by the profession as particularly demanding.[14] Costs lawyers and licensed conveyancers have relatively open access policies and so are closer to CILEx in approach, though in content terms they start from a narrower or more specialised knowledge base (CLC, n.d.; CLSB, 2013).

2.27     All of these professions employ a system of education and training, in contrast to training for barristers and solicitors, that is based upon blending on-the-job and off-the-job learning concurrently rather than in strict sequence. Blended and ‘earn while you learn’ approaches are generally seen by these professions as more effective at assuring ‘day one’ competence, though it should be noted that in most instances the knowledge components of training cover a narrower range of competencies than the LPC or BPTC.

2.28     There is also marked variation in the training in what some refer to as ‘non-core’ and soft skills. Some gaps in relation to client-facing and management skills are evident in these groups.[15]

Periods of supervised practice

2.29     Most of the regulated professions provide for a period of pre-qualification supervised practice. There may also be restrictions on practice in the early years after qualification (for example, the rule that solicitors may become sole practitioners only after three years of employed practice: SRA, 2013e, rule 12). For the Bar and for notaries, although the period of supervised practice is formally post-qualification, it also operates as a constraint on exercising full (ie, unsupervised) practice rights.

2.30     Quality assurance and requirements for periods of supervised practice have been explored in detail in Chapter 6 of the Literature Review. Regulation of supervised practice involves three types of control: the length of the period; the nature of the supervisor; and the context (the nature of the work or of the organisation).

2.31     For some professions (costs lawyers, licensed conveyancers, IP attorneys) supervision and classroom training normally will, or must, be undertaken concurrently. This may consequently limit the numbers entering those professions.

2.32     For CILEx students, from 2013, the period of qualifying employment has been reduced from five to three years; two years of the qualifying period may run alongside the period of study, leaving one year of qualifying employment to be completed after graduate member status has been achieved. There may be a bottleneck effect if suitable employment is not readily available in the later stages, and a number of respondents commented on the risk of commencing training outside employment. However, the definition of suitable employment is more generous than that for solicitors and there is no requirement that a number of different areas of law be covered (IPS, n.d. b). A CILEx member can, therefore, become a specialist at a relatively early stage.

2.33     Trainee solicitors must complete a two-year ‘training contract’ with an authorised training establishment (SRA, 2013c). Up to six months of this period may be reduced for relevant prior experience, and the contract must provide experience in at least three distinct areas of law and in both contentious and non-contentious work. There is some provision to overlap parts of the training contract with the QLD, GDL or LPC. A Professional Skills Course must also be completed during the period of the training contract. In 2010-2011, 5,441 new training contracts were registered (Fletcher, 2012). There are, at the time of writing, 8,991 trainees registered with the SRA.[16]

2.34     For the Bar, the BPTC must be completed before the 12 month pupillage can be commenced(BSB, 2012b, 2012c). The time period may be reduced to account for prior experience. An Advocacy Training and Practice Management course must also be completed during pupillage.[17] Although it is possible for a pupil to experience a range of different areas of law during pupillage, this is not required and many pupils will already be focusing on quite specialist areas of work. There is currently no provision to integrate the BPTC with pupillage. In 2010/2011 446 first six pupillages were registered (Bar Council/BSB, 2012:7).

2.35     There is no requirement for entrants to the Bar or the solicitors’ profession to obtain suitable employment before embarking on the LPC or BPTC. In 2010-2011, however, 32.4% of pupils had secured pupillage prior to taking the BPTC (Bar Council/BSB, 2012).[18]

Reviews of supervised practice requirements

2.36     Each of the larger professions has considered its period of supervised practice in the recent past with some emphasis on the standard of competence to be achieved at the end of the period and on the quality of supervision.

2.37     The SRA has not undertaken any detailed review of the training contract as such, but it has developed a work-based learning pilot out of the work of the Training Framework Review Group (the pilot operated between 2008 and 2013; see SRA, 2009). The pilot was primarily designed to research and explore an alternative model of assessing competence at the training contract stage. There were three aims: to develop a method of assessment that demonstrated competence; to test a route that did not depend on candidates having a training contract; and to see if the route could help to reduce barriers to access. Candidates were required to successfully acquire, develop, apply and evidence skills and knowledge relating to eight key learning outcomes. The learning outcomes were developed by the SRA to reflect the key skills newly qualified solicitors should be able to demonstrate and included: communication; client relations; business awareness; workload management; working with others; self-awareness and development; ‘application of legal expertise’ (including research, writing and drafting, interviewing and advocacy) and professional conduct.[19] Those on the pilot had to evidence through the use of portfolios that they had demonstrated the necessary achievements in these eight areas.[20]

2.38     In 2011, IPS initiated consultation and a pilot on a range of outcomes for the period of qualifying employment required for Chartered status (IPS, 2011). A pilot was carried out over a six month period in 2012, resulting in an analysis of the articulation of the outcomes, feasibility of evidencing outcomes and their assessment (IPS, n.d. a). In the final iteration of the CILEx Competency Framework, there are eight competencies: practical application of the law and legal practice, communication skills, client relations, management of workload, business awareness, professional conduct, self-awareness and development and working with others, divided into 27 outcomes (IPS, n.d. b).

2.39     Guidance for each outcome and other supporting documents are provided and assessment is by portfolio and supporting documents against assessment criteria. Initial summative assessment is by the employer. A moderation process then involves review of all portfolios by IPS officers and reference to the IPS Admission and Licensing Committee (IPS, n.d. c). The scheme in its final iteration will apply from June 2013 with transitional provisions for those already in the system.

2.40     For the Bar, a detailed review of pupillage led by Derek Wood QC (BSB, 2010) made a number of recommendations about the infrastructure of pupillage, and recruitment.[21] The standard of performance, to be assessed by supervisors and the director of training, is defined as:

the standard at which the work (whether it is oral advocacy or written work of any description) professionally addresses all the points raised, and is capable of rendering a real and valuable service to the client.

BSB, (2012a:54)

Pupils must achieve this standard in conduct and etiquette; advocacy; conferences and negotiations; drafting, paperwork and legal research and, normally, in their field of specialist work.

2.41     A fuller comparison of periods of supervised practice appears in Annex II.

Post-qualification training and specialisation

2.42     The continuing professional development (CPD) schemes of the legal professions of England and Wales, of comparable professions (specifically medicine and accountancy) and of international legal professions are examined in Chapter 5 of the Literature Review. The traditional model of CPD in the regulated sector has been input-driven schemes, focused on compliance with a minimum number of hours of activity, often in attending accredited courses. Regulation is by reference to completion of hours and to definition of the range of permitted forms of activity. In contrast with some other schemes for the legal sector internationally, there has been no regulation by reference to either the topic (including, for example, mandatory coverage of ethics or practice management) or what has been learned from the CPD activity itself (the output). For professional bodies as a class, including those of the domestic medical and accountancy professions, there has been a trend towards two other models of CPD. One model seeks deliberately to monitor outputs (including in some cases, learning that has taken place as a result of day-to-day practice experience). The other, examples of which are discussed in Chapter 6, involves a more cyclical model, recognising phases of planning, activity and improved practice arising from the activity.

2.43     This has been a much worked area for proposed changes. During the course of the LETR research phase, the BSB (BSB, 2011a-c, 2013a); IPS (IPS, 2012a-b); IPReg (2012a) and the SRA (Henderson et al, 2012), all conducted investigations into their CPD schemes. The BSB, at the time of writing, is evaluating consultation responses on a more cyclical model that would retain a minimum hours requirement whilst extending the range of permitted activities and making explicit reference to ‘further ethics training’ and to ‘equality and diversity training’. IPS is already implementing moves to a cyclical model that has no minimum hours requirement. A brief comparison of the structure of the existing CPD schemes for each of the regulated professions appears in Annex III. This report therefore takes note of the fact that existing CPD schemes are already in the course of transition and this is reflected in the scope of the report’s recommendations.

Summary

2.44     In summary then, this section has explained the key stages and structures of LSET in England and Wales. It has focused on technical detail relevant to later parts of the report. The picture described also reveals the extent to which the current system involves component stages, including the distinction between pre- and post-qualification. In the context of the professions of barrister and solicitor this is particularly marked by a shift from classroom to workplace learning.

2.45     The professions have maintained a sphere of relative autonomy around their professional training and CPD. The result is a set of semi-autonomous systems of quite considerable complexity and variation.

2.46     Another marked difference between the regulated professions that is apparent from this survey of the field is the extent to which occupational groups locate their training along two axes: one being the extent to which training is broad-based or specialist, the other is the extent to which it is ‘knowledge’ or ‘practice’ based. This latter distinction seeks to capture a combination of technical and cultural assumptions about the training process. The traditional professions can be seen as primarily knowledge based. They have moved away from apprenticeship both as a style of, and setting for learning, with more of their training located in the classroom and focused on learning the ‘science’ of law. It is only in the later stages that this knowledge is re-integrated into practice. Other occupations start from a more ‘blended’ approach that seeks to integrate what is covered in the classroom with what is done in the workplace from the outset. The degree to which practice-based and ‘book-based’ or classroom learning are integrated or simply conducted concurrently is an interesting and relevant source of variation in these models. In recent history, much of the focus of training has moved away from the workplace and into the classroom. The current levels of interest and activity around work-based learning, apprenticeships, and the re-design of CPD point to a renewed interest in the workplace as a site of learning and source of professional competence. This in itself is a matter of some relevance to the LETR in determining focus and direction of travel.