Competence and flexibility

5.45     Calls for greater flexibility in the design and delivery of LSET are not new. In shaping its proposals for legal education and training ACLEC (1996:22) asserted that ‘the growing variety of practice settings, the need to respond to rapid changes and to take opportunities as they arise… suggest that a pluralistic approach should be encouraged, with providers of legal education and training having greater discretion than they are currently allowed’. This was reflected in ACLEC’s proposals for further liberalisation of the academic stage, which came to be reflected in the current version of the Joint Statement. Flexibility was also central to the Committee’s thinking in proposing an element of common training at the vocational stage for solicitors and barristers. The theme of flexibility was taken up again by the Law Society’s Training Framework Review (TFR) in 2001. The Training Framework Review Group wanted a move to ‘day one’ outcomes; to open up alternatives to the training contract, and they refused (by a majority) to sanction the LPC as a required stage of training. This ran into opposition primarily from the larger firms, the LETG, and LPC providers. Consequently, the impact of the TFR has been less radical than its designers intended.

5.46     The Neuberger Report on Entry to the Bar supported in principle the expansion of part-time and flexible learning pathways for the (then) BVC, ‘provided that quality and standards are not detrimentally affected’ (Bar Council, 2007:50), but the issue of increased flexibility has not arisen to the same degree in respect of other professional training regimes, for a variety of reasons: because there is already an inherent flexibility in the training (CILEx qualifications), or because there has been little demand, or limited scale and scope for change.

5.47     A number of the themes from these earlier reviews are picked up again in this section. However, it should first be acknowledged that there is already considerable flexibility in parts of the system, though much is ‘vertical’ rather than ‘lateral’. Examples include flexible modes of study and awards that combine multiple stages of training, such as an exempting LLB, CILEx graduate fast track, or Northumbria University’s MLaw pilot, which took a student/trainee from LLB entry to the point of qualification as a solicitor. Whether this kind of flexibility meets the needs of an increasingly dynamic labour market is moot.

5.48     There are three distinct but connected areas where there is potential to enhance the flexibility of LSET. It is not assumed that flexibility is necessarily (or only) a good in itself. Flexibility here is used as an instrumental value in the sense that it will forward other ends for the LETR, notably enhanced competence or quality for consumers, greater diversity, and where possible reduced cost and other burdens on employers and trainees.

Multiple routes to qualification

5.49     There are already a number of pathways into the regulated legal services sector. In practice, however, it is dominated by the well-beaten trails of graduate entry to the Bar and solicitors’ profession, and the predominantly non-graduate routes via CILEx, and, to a numerically lesser extent, the CLC.

5.50     The existing training model for solicitors in particular is expensive and potentially risky,[1] requiring a significant up-front investment in recruitment and training, maybe two years, or more, ahead of the trainee actually entering the organisation. The need for this level of commitment in current economic conditions, and the inflexibility of the linear route to training is being questioned:

…I think that a much more flexible diverse number of routes whereby people can achieve qualified status would be very desirable…. It is good to have more of an opportunity for somebody to look at a firm like us, look at law as a career, and for us to have a good look at them and decide whether we think they match up. And you know give people more of an opportunity to do some stuff on the job before we each enter into a commitment. And it’s not easy to do that… in the traditional structures we’ve got at the moment.

Solicitor

5.51     Discussion papers issued during the research, and particularly Discussion Paper 02/2012, laid out as a general principle the development of a more or less market-led ‘mixed economy’ approach to training. This would work from a presumption that new, flexible approaches should be encouraged, and that the burden should be on the regulator, adopting a risk-based approach, to identify why a pathway should not be permitted, rather than on proponents to make the case for change. The advantages and risks of such an approach, and some of the safeguards that might be required, are well-expressed by the Law Society in its response to Discussion Paper 02/2012:

This would lead to a range of legal education and training routes for entrants to the profession. Entrants could decide on whichever route suits them best in terms of time, costs and preferred method of study. This would benefit the legal profession, as it would widen opportunities for access and is likely to improve the diversity of the social background of lawyers. As these routes are developed, the Society would wish to see regular comparability studies carried out to ensure the standards of the different routes are maintained. Providers can market different qualifications, but must meet set outcomes and standards and be comprehensively quality-assured against them. The results of these studies should be published so that employers will gain greater confidence in these alternate routes. However, some thought should be given to the optimum number of alternate routes. The regulation of a large number of routes will create administrative burdens on an already overstretched regulator and the associated costs may increase. Alternate routes should not lead to increased regulatory costs for the profession.

Law Society response to Discussion Paper 02/2012

5.52     The CLLS  also saw potential in the approach:

To facilitate this, we envisage the future training continuum being made up of a range of interlinked regulated training pathways for all members of the legal workforce. Each pathway must require participants to undergo suitable training and assessment to ensure quality standards are maintained at each step. Furthermore, while those pathways need to be designed so that they give training for the specific area of activity, they also must be designed to allow transfers between sectors.

CLLS response to Discussion Paper 02/2012

5.53     Such an approach does not necessarily imply a fusion of existing training, titles or regulators. It is evolutionary and recognises the centrality of outcomes, not courses or time served, as the building blocks for development. It does not take anything away from the contribution of liberal legal education, but recognises that LSET has its own vocational priorities, which may be addressed in other ways. It also acknowledges that pressures on costs and time must not be allowed to reduce standards or ‘dumb down’ training, particularly where strong intellectual and technical skills underpin the role.

Common professional training

5.54     Common training has been a matter of debate since before the publication of the ACLEC Report. The discussion has tended to focus on some element of fused training for barristers and solicitors. In this context common training can be distinguished from both complementary or inter-professional pre-qualification training and common CPD.

5.55     In some respects the question has become more challenging since the ACLEC Report. Reforms to the BPTC in particular, but also to the LPC, have tended to increase the divergence rather than convergence of training. Though the gap between what (some) solicitors and barristers do has narrowed by virtue of higher court rights and public access, these changes do not necessarily affect what needs to be learned at the vocational stage; nor does the call for greater convergence necessarily sit well with the increased stratification within these professions. LETR research data, not surprisingly, reflects this complexity and uncertainty:

The proposal for an initial training course for both solicitors and barristers has attractions – for example, it could result in a paralegal qualification and it may help students to manage the risk and cost attached to pursing a legal career by providing a recognised exit point and postponing choice of profession. However, we think that there is currently too little overlap between the content of solicitors’ and barristers’ training… to justify the proposal.

Kaplan response to Discussion Paper 02/2012

… the Law Society recognises that with increasing overlap in the responsibilities of the professions … it may be possible or even desirable to have an initial stage of shared training, if a genuine ‘core’ of skills and knowledge were to be developed. It is difficult to see what this common core could be. Without the common core, this would merely entail an extension to the current LPC/ BPTC courses, which would have an impact on cost and would be likely to have a negative impact on social mobility and entry to the professions.

Law Society response to Discussion Paper 02/2012

5.56     It was also apparent from the LETR research data that there is even quite a high level of resistance in some quarters to complementary or inter-professional training (which at its crudest might involve module-sharing). Slightly over 40% of barristers offered some support for ‘greater common training across the LPC/BPTC’, as compared with nearly 70% of solicitors (Table 5.1). This, of course, is not the same as fused common professional training .

5.57     A range of approaches to common training could be envisaged, and were explored during the research. Those most commonly highlighted in discussions were:

• fully integrated (shorter) vocational course followed by separate workplace learning and initial professional development;
• fully integrated vocational course followed by further specialist training for the Bar (the Scottish model);
• integrated stage 1 course followed by separate stage 2 (the ‘Hong Kong’ model[2]).

5.58     However, while common training might create some limited economies of scale or scope, it is not clear that it would significantly reduce the cost of training across the board, and could lengthen it for some (depending on the model adopted). It could help enhance quality in some areas (eg, advocacy training for solicitors), but it does also risk some loss of specialisation/reduction to a common core in others, particularly for the Bar, unless something like the Scottish model is adopted. It offers flexibility for those who are uncertain about their career paths, but it is not clear what others would gain. The critical question is what benefits are there for the system, and the answer seems equivocal at best.

 

Table 5.1: Support of solicitors and barristers for ‘greater’ common professional training

Weighted data.

There is scope for greater common training across the LPC and Bar Professional Training Course (BPTC).

	Missing	Completely disagree	Disagree	Somewhat disagree	Neither agree nor disagree	Somewhat agree	Agree	Completely agree
Barristers	12.6%	9.4%	15.5%	9.7%	10.6%	21.9%	15.5%	4.8%
Solicitors	6.2%	2.2%	2.8%	6.5%	14.8%	28.6%	27.4%	11.7%

5.59     Interestingly, a more radical approach was offered by the Bar Association for Commerce, Finance and Industry (BACFI), which proposed common training as part of a more fundamentally integrated process, more akin to what we may see developing around the apprenticeship model (see Chapter 6):

Recognising that on the job learning is a crucial part of the making of a lawyer, we propose that the professional qualification be obtained at the end of a period of blended learning which incorporates technical, practical and academic learning in the same programme. We would envisage that this period would last between 2 to 4 years, during which period the student could undertake part time, shared or day or block release programmes devised for his/her needs and the needs of his sponsoring firm, department or chambers.

The training and education at this stage would be common to all lawyers and would avoid premature career choices, whilst giving the trainee a high degree of control over his own learning package.

We do not propose the fusion of the various branches of the profession. There is client demand for a choice of legal specialists and we do not see this reducing. We do propose that the solicitors’ and barristers’ training contracts, as presently organised, should be replaced by this combined and common period of supervised practice and blended learning.

5.60     Restructuring classroom and workplace training to this degree would likely create significant resource and training challenges for the independent Bar, particularly in finding capacity to train what would initially be (in terms of skill level, if not in name) a paralegal workforce. Some lesser degree of integration may be more practicable.

Integrating classroom and workplace learning

5.61     Within the legal services sector, the professions – primarily barristers and solicitors – which take a sequential approach to classroom and workplace learning are in a minority, though their members constitute a majority of the regulated professionals. All other professional groups require, or predominantly experience,[3] concurrent or integrated training.[4] There appeared to be a growing stakeholder interest in this topic during the research, reflecting both recognition of the perceived efficacy of the CILEx approach which permits trainees to ‘earn while they learn’, and interest in the launch of an integrated approach to the LPC stage 2/training contract by Eversheds.[5]

5.62     The research identified a range of benefits/risks of integration of classroom and workplace learning which are summarised below:[6]

Advantages of integration

• Improves quality/nature of learning;[7]
• Spreads cost of LPC/BPTC;
• Possible basis for a move to more flexible/modular training;
• Potential to ‘bridge the gap’/give trainees a head start between the vocational course and workplace training;
• Better control of numbers (if learning and training are fully integrated).

Risks/challenges of integration:

• Practical difficulties for/financial burden on firms/chambers releasing trainees from work;
• Risk of unrealistic workload on trainees;
• Fragmentation or disruption of learning;
• Possible reduction in number of pupillages if integration imposes too great a burden on the supervisor or chambers’ infrastructure;
• Difficulties of assuring quality of training consistently at the practice stage;
• Difficulties in assuring consistency and ‘integration’ between practice and the classroom;
• Consequences for course diversity from employer selection of trainees.

5.63     Views on the way forward were divided across the occupational groups. A number of stakeholders were supportive, or at least cautiously so,[8] others were concerned that the changes would not be viable for, or beneficial to, training in their part of the sector.[9] On balance, a majority of responses seemed at least open to the Discussion Paper’s proposal for the continuing development of a ‘mixed economy’ of approaches. Taken together with the considerable evidence of integrated approaches in other professions, further experimentation, including fully integrated day- or block-release models, is recommended, though preliminary analysis of the specific regulatory risks and costs of any such approaches should be considered carefully before piloting. Any such proposals should, as the Law Society suggests, also be accompanied by a commitment to proper evaluation.

Recognition of qualifications for entry, exemption and transfer

5.64     Benefits may attach to greater flexibility and movement between, not just within, regulated occupations; this may have important advantages for access and career progression, ensuring that individuals with the skills and abilities to succeed are not held back by artificial barriers. At the same time, too much flexibility may create risks for employers and consumers. Qualifications for entry, exemption and transfer purposes serve in this context a protective function, and offer some indication that the possessor has an adequate level of competence and range of skills for the function prescribed.To balance the protective and facilitative functions of qualifications, the LSET system must provide a minimum level of consistency facilitated by co-ordination of standard-setting for the purposes of entry, exemption and transfer.

Entry and aptitude

5.65     The academic calibre of entrants, particularly to the traditional legal professions, is high and there is no appreciable evidence that existing entry standards across the sector constitute a substantial risk to consumers. Nonetheless, in the context of a highly competitive training market, there is some concern that the current Anglo-Welsh system does little to assess the actual aptitude of entrants for law, in marked contrast to the US system, for example. The case for aptitude testing has been made in respect of entry both to read law at university and to vocational training for the BPTC or LPC. These courses are, of course, potentially testing for different aptitudes. Aptitude for the academic study of law does not necessarily translate to a high aptitude for its practice, and aptitude for the Bar may turn on rather different capabilities to those required for being a solicitor, though each of these are likely to share important common features.

5.66     The ability of the universities to identify accurately and fairly those who are most likely to succeed at law school. This has both quality and diversity implications, as Moorhead observed in response to Discussion Paper 01/2012:

It is also worth saying that work conducted by the Sutton Trust suggests that the recruitment criteria of universities, particularly elite law schools, is likely to favour students from public school over State school backgrounds because of the bump in performance public schools give, some of which (about two A-level grades worth across three subjects) is not reflected in their future performance at universities. In other words, University admission is not geared towards those with the greatest aptitude for undergraduate education but to those with the highest grades at the end of their schooling. Given the concentration of elite law schools at the very upper end of A-level grades, this is likely to have a very significant effect on who succeeds in gaining entry to the better law schools and, therefore, to the best (or at least the most remunerative and highest status) jobs. It also diminishes the quality of those entering the profession.

5.67     Whether an aptitude test would necessarily enhance cohort entry standards is uncertain. A recent UK study of the potential value of the general SAT reasoning test concluded that it has some predictive power, in the absence of other attainment data, but that it did not add significantly to the predictive power of GCSEs and A-levels (Kirkup et al. 2010). The national admission test for law or LNAT, run by Pearson VUE, has not gained significantly in popularity or use amongst UK university law schools, with only eight institutions (albeit from the Russell Group of research intensive universities) currently requiring LNAT scores.

5.68     Aside from questions of predictive value, the consequences of aptitude testing on equality and diversity are also important issues. Whilst reliance on A-levels is not neutral in diversity terms, LNAT’s own unpublished data analysis for 2008-09 suggests some evidence of differential results according to ethnicity and social class, but no indication whether those differences are statistically significant.[10] Research for the LSB also indicates that, if an LNAT score of 17 was used to define admission to law schools using the test, then 51% of white candidates would be admitted, 30% of Black African candidates and 27% of Indian and Pakistani candidates (Dewberry, 2011:32). Differences are likely to be attributable to a number of factors, including access to additional coaching prior to taking the LNAT. Bursaries covering the test fee are available to UK and EU applicants in receipt of certain welfare benefits, but no financial support is available for coaching for the test.

5.69     The difficulty of distinguishing, at the point of selection for vocational education, between growing numbers of graduates, has also led to a debate about whether an aptitude test should be used to select for this stage of training. The BSB  (2008) took the view that a 2:2 degree was not adequate by itself to distinguish those likely to succeed on the BPTC, while some LPC providers have also expressed concern regarding the level of ability represented by a 2:2 degree (Baron, 2011). So far, however, the BSB is the only body to have made aptitude testing a condition of admission to vocational training.[11]

5.70     The BSB’s consultation document on the BPTC admission test (BCAT) reveals that the BSB has attempted to align the assessment criteria of the aptitude test to the BPTC, in order to ensure its predictive power in identifying weak candidates. However, proper assessment of the BCAT’s predictive value obviously cannot take place until a reasonable cohort of data is available, though pilot work has shown that the test appears to have incremental validity beyond students’ prior educational attainments (ie, it does not just reflect prior performance) (BSB, n.d.).

5.71     Attitudes within the sector to the use of aptitude tests have been extremely varied. Support was perhaps marginally stronger among junior lawyers and junior lawyer groups.[12] This suggests that an objective assessment of capability would be a ‘kindness’ to weaker applicants, especially in a context where course providers had a strong financial interest in filling places. However, concerns about the predictive value of tests and their impact on diversity were common across groups who expressed reservations. The Black Solicitors’ Network (BSN) thus asserted:

[A]ptitude testing would be a further barrier to progression in an area where there are already significant challenges and obstacles. The use of standardised testing would favour those taught or equipped with so called ‘soft skills’. Unless there is a mechanism to eradicate unconscious bias such tests are likely to favour certain sections of society [and] lead to a more socially exclusive profession.

5.72     The BSB Equality Impact Assessment acknowledged that some minority groups would be affected by the BCAT test (though not necessarily adversely), and proposed that the ‘cut score’ would be set low to minimise the impact. It has in fact been set to catch only the bottom 10% of applicants, who are considered those most likely to fail the BPTC. On the basis of 2010/11 figures, that would suggest an outcome of around 300 test failures out of 3100 applicants (see Bar Council/BSB, 2012). The impact on numbers enrolled, on these figures, would likely be relatively small. Even if one assumed a proportionate effect, it might reduce numbers by no more than 170 students. Given that applications have exceeded enrolments by between 800 and 1400 over the last three years, the reduction could be less. The actual impact on cohort competence and the student experience, of course, remains to be seen.

5.73     At present therefore, there is not a strong evidence base upon which any firm recommendations for the greater use of aptitude tests could be made.

Exemption and transfer

5.74     Exemption and transfer arrangements between different professional frameworks in the legal services sector are complex and often difficult to ascertain. Annex I sets out details of all transfer routes available on the basis of public information about them. Exemption and transfer rules do not map neatly across the range of regulated occupations, can lack transparency,[13] and, in some cases, currency.[14] The rationale for accreditation or refusal of accreditation for a particular qualification is not always clear. Issues have arisen with respect to four pathways which are illustrative of such problems.

5.75     Between CILEx Fellowship and solicitors or barristers: the pathway between the CILEx Fellowship and qualification as a solicitor is well established, and reasonably transparent. However, there are still perceived barriers/complexities to the transfer process:

• the need to satisfy the ‘Foundation subjects’ requirements;
• the exclusion from the right to transfer for those who have studied the LPC before doing CILEx qualifications;[15]
• the significant cost of the LPC acts as a major disincentive to some;
• the absence of recognition of prior experience for mature entrants (AP(E)L) was also raised, for example:

I am a mature student who has worked in the legal field for over 15 years and I have vast working experience. This could be taken into account for fast tracking past some of this extra study.

CILEx member

5.76     The absence of an equivalent pathway between CILEx Fellowship and the BPTC was also mentioned. The criteria for admission to the BPTC require applicants to be graduates, as distinct from persons educated to a graduate-equivalent level.[16] Since the CILEx higher diploma is accredited (like the GDL) at NQF level 6, and can address the range of Foundation subjects, the rationale for excluding those who have satisfied these requirements from the BPTC is not clear.

5.77     Between barristers and solicitors: Bar respondents view the limitation of access to the QLTS to those who have completed pupillage as a restrictive practice:

The change in the Law Society’s rules means that people who have spent £16,000 on the Bar Course and don’t get pupillage have a choice of giving up the law or working in a legal position with no hope of qualification without further potentially expensive re-training, whereas previously they could cross-qualify.

Barrister (online survey)

5.78     Between IP attorneys and solicitors: solicitors are able to take a fast track course to qualify as a registered trade mark attorney on demonstrating two years IP practice but otherwise there is little cross recognition.[17] Conversely attorneys must ‘go back to square one’ and complete a full GDL/LPC in order to qualify as solicitors. There is thus significant disparity between the pathways.

5.79     Costs lawyers are both specialist and non graduate, creating particular problems for transfer into other legal professions. Dual qualification is permitted with CILEx, but there are no reciprocal routes into the solicitor/barrister professions.

5.80     There is some evidence of developing interest in fast track courses designed specifically to accommodate transferees beyond the established GDL, QLTS and BTT. A short-form LPC for BPTC graduates and an intensive course for intending registered trade mark attorneys have recently become available.

5.81     More generally, the extent of demand for greater transfer and/or exemption rights is difficult to assess, but the level of complexity highlights the challenges of co-ordinating regulatory activity across the sector. This is picked up again in the final part of Chapter 6.

 

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