Fair access and barriers to entry

6.2     Fair access to legal education and training underpins both access to justice and other objectives of the LSA 2007.[1] By enabling employers to choose trainees from a wide talent pool that is shaped more by ability than historic opportunity, effective fair access policies have the potential to drive up the quality of those delivering regulated services, and ensure that regulated professionals are representative of the society they serve.

6.3     Two overlapping problems exist: specific barriers to access to the sector; and the absence, in some areas, of co-ordinated strategies to support and enhance fair access. These are addressed under four main headings:

• diversity and the cost of LSET;
• informational barriers;
• recruitment criteria and processes;
• the role and impact of diversity schemes.

6.4     Access to undergraduate legal education is already regulated as part of the established infrastructure in place within the HE sector as a whole. Universities and further education (FE) colleges undertaking higher education (HE)  level work in England must have an access strategy and agreement approved by the Office for Fair Access (OFFA). OFFA is also currently working with the Higher Education Funding Council (HEFCE) to develop a national strategy on access to higher education, which is expected to be published by the end of 2013.[2] This report therefore considers only those stages of training that are within the primary regulatory responsibility of the frontline regulators.

Diversity and the cost of education and training

6.5     The expense of LSET and its potential to function as a barrier to accessing training and employment were  a recurrent theme across the LETR research data.

The QLD

6.6     Widening participation policies over the last two decades have undoubtedly changed the composition of the undergraduate population. The law student population today, is predominantly female with a proportionate over-representation of BME students relative to population norms. In that sense, the sector performs ‘well’ in terms of those diversity criteria (Literature Review, Chapter 7).[3] In other respects, progress has been more limited. As noted in the Literature Review, and in the latest Milburn Reports (2012a, 2012b) progress on widening the socio-economic origins of the student population, particularly within elite universities has been slow, with consequences for social mobility and the diversity of the professions.

6.7     It is still too early to assess the likely longer term impact of the 2012 changes to higher education funding in England.[4] The headline trend for university entrance in 2012-13 showed a fall in demand across the board in England. However underlying data indicate a more complex picture, in which entry rates for 18-year-olds remained close to recent levels and the participation rate among young disadvantaged groups showed some increase, particularly at higher tariff institutions (UCAS, 2012). Furthermore, data on application rates at the end of the initial application cycle for 2013-14 offer some evidence of a potentially  rapid bounce-back from 2012. These indicate a 3.5% headline increase in the number of applicants across the UK, as compared to the same point last year, with law applications showing an above average increase of 5.3%. Applications from disadvantaged 18-year-olds[5] are also running at close to record levels (UCAS, 2013).

6.8     The direct effect on recruitment into vocational training will not be apparent for another two years, and the extent of interest in alternative pathways, and alternative legal careers remains somewhat speculative.

The GDL /CPE

6.9     The effect of the new undergraduate fees will not reach GDL recruitment until the lead-in to the academic year 2015-16. For non-law graduates the GDL/CPE adds a further year to the qualification pathway at a basic cost (fees only, based on 2012-13 figures) of between approximately £5,000 and £9,500. Some GDL students will obtain financial support or scholarships to assist with the cost of the course, but a significant proportion are self-funding, often reliant on an element of parental support. The GDL population appears to be relatively elite: the Law Society Cohort Study (Shiner and Newburn, 1995) demonstrated that students from lower socio-economic classes and BME backgrounds were less likely to take the CPE than a law degree. More recent data also highlight that the GDL cohort may be less ethnically and socially diverse than the equivalent LLB population.[6]

6.10     Central Application Board (CAB) data also demonstrate that GDL student numbers have been expanding steadily since the mid-1990s, virtually doubling between 1996 and 2009. However, the recession has since seen numbers decline by about 13% between 2010 and 2012. The GDL may shrink further in a continuing recession, and possibly become more elite. Changing the duration and cost of the GDL would be likely to have further negative consequences for diversity.

Cost of training for barristers and solicitors

6.11     The high cost of vocational training, [7] combined with the number of available places on vocational courses, was a particular issue of contention among LETR research respondents. Many were critical of a system which, with LPC fees rising to over £13,000, and BPTC fees as high as £16,000, they saw as operating to the benefit of course providers more than the trainees or employers. This was particularly evident in individual responses to the online survey, in which there were many comments to the effect that, ‘providers make substantial profits by giving false hope to many students. This must be stopped’.[8]

6.12     Financial risk itself is a potential barrier to entry. It is not known how many graduates are deterred from vocational training by cost. As noted in Discussion Paper 02/2011, there is evidence that the LPC has been relatively market sensitive, with a longer-term tendency towards equilibrium between supply of, and demand for, trainees. This is not true of the BPTC, where student numbers have remained high despite a continuing decline in the number of pupillages.

6.13     From a diversity perspective the cost of training is a matter of concern. The current system inflicts the greatest financial burden on those who are at the greater risk of not progressing to a training contract or pupillage: graduates from non-elite universities, and those who have not been able, because of their social or financial circumstances, to build the preferred CV.[9] By contrast, many of those who are offered training contracts ahead of starting the LPC will be sponsored through the course by their future employer. Similarly the Inns of Court provide scholarships and bursaries, covering all, or more often part, of the course fee, to approximately 500 students each year (BSB, 2008:17). Even allowing for the fact that not all pupillages will necessarily go to scholarship students, in the context of an annual competition for fewer than 500 pupillages, the risks of taking the BPTC must be significantly higher for non-scholarship students.[10]

6.14     Responses in the research data indicated widespread concerns about the future impact of the funding changes in degree education and increased levels of indebtedness amongst trainees. The prospect of the total debt for English students who have completed a degree and vocational training climbing to £50,000 to £60,000 or even more, could have a disproportionate impact on non-traditional and disadvantaged entrants, who may be more likely to come from social and cultural origins that are more debt-averse.[11]This was thought to create particular challenges for the Bar, given the risks of self-employment, and the increased financial pressures on publicly funded work.[12] Respondents also suggested that the increase in university tuition fees[13] would lead more students to consider CILEx qualifications and apprenticeship-based routes.

6.15     The availability of training contracts and pupillages is determined largely by the market and the workforce decisions of individual training organisations. For both solicitors’ and barristers’ professions there is a relatively strong correlation between the number of training contracts or pupillages available and the number of associate positions/tenancies being offered. There is, thus, in market terms, little shortfall between the number of training opportunities and actual jobs in the market. The problem, highlighted by many participants in the research, is rather the upward supply-side pressure generated by the numbers graduating from professional training for these two professions.

CILEx qualifications

6.16     Cost of training issues in respect of CILEx qualifications are less daunting. Qualification, from the start of level 3 to completion of the Fellowship award, costs at current fee levels around £7,000, spread generally over a four to six year period. For law graduates entitled to complete the Graduate Fast-Track Diploma, the cost is approximately £2,000.

6.17     The majority of CILEx trainees study part-time whilst working,[14] and a recent (unpublished) survey conducted by CILEx indicated that about 50% of trainees received some financial contribution to their fees from their employer. Government funding policies designed to encourage training had meant that CILEx students aged over 24 and studying at level 3 were required to pay only half the cost of training courses. From March 2013, however, mature students are obliged to meet the full cost of courses, though student loans through the new Further Education Loans (FEL) scheme are being made available. The Department of Business, Innovation and Skills’ own impact assessment (2012) suggested that this could take 150,000 adult learners out of the adult and further education system. Because a high proportion of CILEx trainees are in employment, the impact of this change may not be as significant as it is in some areas of training, though at this stage it is too early to say for sure. CILEx level 6 courses do not attract higher education student loans, so trainees must already rely on their employer or self-funding for those.

6.18     The greater financial barrier, however, is for those CILEx Fellows who might wish to qualify as solicitors, since they must complete the LPC, either full- or part-time. For many, since this may not be simply a matter of ‘progressing’ to a solicitor’s role in their existing firm, taking the LPC carries risks as well as costs:

[I]n its current regulatory form [the LPC] is for most a major cost and time barrier, and without a prior offer of a qualified solicitor’s job at the end of it, it is no surprise that this route appears unattractive to the majority of those [wishing to re-qualify].

LETG response to Discussion Paper 02/2011

6.19     The absence of any accreditation of the level 6 practice units and professional skills units against the compulsory elements of the LPC was commented on critically by both CILEx[15] and a number of its members during the research.

Informational barriers and needs

6.20     Participants generally recognised that entry to the professions is competitive but wanted information and transparency to ensure that applicants could make informed decisions. A recurrent theme from students and young lawyers was lack of knowledge and certainty about the education and training process, and limited awareness of where to go for information:[16]

…there was nowhere to really go to, to get some sort of balanced impartial advice on what I should do, what my approach should be, my career options. Maybe I should have gone to the Law Society, maybe that’s something they actually do offer. But I never found it.

LPC student

6.21     Insufficient advice and information apply to all stages of education and training, but particularly from an early, secondary school, stage. Advice needs to support applicants from quite early on in understanding the processes involved, and employers’ expectations. This is most critical for those from non-traditional backgrounds:

People are doing law degrees because they think that a law degree equals a job immediately afterwards and they really need to be taught … from earlier even … before degree. But you need to be taught the kind of activities that you need to be doing outside of school that end up being on your CV. … it’s just the wider education that people from BME and working class backgrounds need.

Pupil barrister

6.22     A number of participants suggested that there was an expectation that the established path would just work to take them through to qualification, whereas this was not the case:

[I]t’s almost like a breadcrumb effect, they’re taking the next step without thinking well actually another two years from where I am now, if I don’t have a training contract, what am I going to do? I will have got myself into debt, specialising to become a lawyer when there aren’t as many opportunities as perhaps I may have been led to believe.

LPC student

6.23     As a consequence, many respondents had not explored, or even been aware of, alternative legal careers and pathways to qualification. There needed to be more information available about alternative careers:

I am due to start my training contract in September. I did my A-levels, went to university to study law (QLD) and then did my LPC part time (because of the cost). At no point, until I started working in a law firm was any other route to becoming a solicitor highlighted to me. I knew nothing of CILEx or any other available route which in the long term may have saved me time and money. The only reason I have followed the education path that I have is because I did not know there was another available and even if I had, I would question whether it was viewed in the same way. With the costs of legal qualification rising exponentially, and the abolition of the trainee minimum salary, more should be being done at a secondary school level to explain to people other routes of qualification.

Paralegal (online survey)

6.24     A range of specific information needs was also highlighted:[17]

• the different routes to qualification as an authorised person;
• the ‘real’ cost of qualifying, and the prospects for employment;
• the different types of education and training options available (eg, sandwich courses, exempting degrees, distance learning options);
• information about paralegal work and internships;
• better information about the range of scholarships;
• data from education providers about employment destinations.

Recruitment

6.25     Barristers’ chambers, solicitors and other employers should have a high degree of freedom in shaping the workforce they need, subject to proper legal and ethical standards. At the same time these are also crucial training decisions – no less than recruitment to university or college. There were many complaints voiced in the LETR research about the recruitment processes of firms and chambers. Three barriers to access are mentioned: reliance on -A- levels and tariff scores; access to work experience, and the focus on recruitment from elite universities.

The use of A-levels/UCAS tariff points as a preliminary or primary selection criterion

6.26     Previous academic qualifications are clearly an indicator of certain academic skills and capacities, and so are of relevance to employers where those academic capabilities are important to the role. At the same time, there is clear evidence, highlighted in Discussion Paper 02/2011, that performance at public examinations is also shaped by a range of cultural and economic factors, so that such qualifications may fall short of being objective measures of intellectual ability. Mature students, in addition, suggested that reliance on their distant A-level grades failed to recognise other valuable attributes acquired by experience.

6.27     A particular concern is the use of UCAS tariff points as a sifting criterion for access to graduate recruitment programmes. The tariff was not designed for this purpose and using it in this way disadvantages those who may have taken less traditional routes into university, such as mature students and those who have taken access courses. It is notable that the second Milburn report has advised that ‘All employers should stop this practice immediately, as it is both discriminatory and unlikely to be effective as a tool for identifying potential’ (Milburn, 2012a:71).

The significance of prior legal work experience in recruitment decisions

6.28      The Milburn Reports (2009, 2012a) on access to the professions have highlighted that work experience is increasingly a prerequisite to securing employment. It may also be a factor in recruiting students to vocational training: at least one BPTC provider makes it a condition of entry to the course (BSB, 2010).

6.29     LETR qualitative data suggest that the need for prior legal work experience is growing in the present climate. Respondents to the careers advisers’ survey in particular mentioned the increasing hurdles imposed by recruiters, not just to get a training contract, but to get on vacation schemes, and referred to the demands for more work experience and extra-curricular activities on applicants’ CVs.

6.30     Work experience raises important equality and diversity issues, including inequality of opportunity (eg, for those with family responsibilities or carers, or for those for whom there may be significant pressure to undertake paid work during vacations) and inequality of access. Discussion Paper 02/2011 highlighted the research evidence which indicates that access to work experience is not equitably distributed. Access to formal work experience is shaped by a mix of credentials and social background: a combination of social capital, high UCAS tariff scores, attendance at a pre-1992 university and prior informal work experience, often achieved through personal or familial connections with the profession (Francis and Sommerlad 2009, 2011).[18] LETR research data have similarly identified the importance of social capital and connections in obtaining access to informal and formal work experience:

Mostly at [Russell Group university] we had all these parents on the phone to their children ‘Have you applied for your vacation scheme yet, darling?’ … so it was really the people who were being really looked after got in there.

LPC student

There are significant barriers for students from black and ethnic minorities, students with disabilities and students from low economic backgrounds. They have not had the advantage of family and friends opening doors for them.

Careers Adviser

6.31     There is evidence that the requirement for prior work experience is being pushed back, to a point where students who have not undertaken legal work experience at school or informally before the second year at university are at a disadvantage:

[O]ver the last couple of years I’ve noticed an increase in firms actively seeking previous legal work experience from second year law vacation scheme applicants (ie, it being explicitly included on their ‘wish list’ and candidates being turned down for not having it).

Careers adviser

6.32     This matters because the evidence suggests that access to informal work experience is even more likely than formal experience to be (i) mediated through personal contacts, and (ii) strongly correlated to both attendance at a pre-1992 university, and socio-economic origin (Francis and Sommerlad, 2009).

6.33     There is also growing use of unpaid graduate internships in the legal sector. These are now becoming the first rung of the employment ladder in some firms, with the result that the career path is becoming both extended and more uncertain as students are ‘starting unpaid [on] internships, converting to poorly paid employment in some cases, and for some, transferring to training contracts or pupillages’.[19] The diversity implications of this change were clearly spelt out by one paralegal:

Many firms are doing that. They call it ‘internships‘ and they’re taking on graduates, people with law degrees who have paid the fees for a 3 or 4 year course and are going into voluntary unpaid work. And this benefits only middle-class people, because as a person from a working background, you need to live. You can’t go into voluntary work for a very long period of time and it’s obviously going to appeal to people who have got … wealthier parents, who can actually work for free for that long period of time. So, basically, it … sifts out the working class in a really indirect way. And loads of firms are doing it now. So even to get a paralegal role, people are first working as paralegals for free.

Recruitment from elite universities

6.34     Recruitment to City firms and the Bar has tended to be dominated by some 10 to 20 ‘elite’ universities. The focus on elite institutions reflects the professions’ pursuit of a particular conception of quality, and is justified by claims as to the variability of standards in the university sector, so that, as one solicitor respondent put it, there are actually not enough ‘good’ law students. The GDL/CPE, which constitutes a significant entry route to the solicitors’ profession and the Bar, also plays a part in ensuring the continuing dominance of elite institutions since, although it is used by firms to widen the net for quality recruits, it has tended to have a narrowing effect on the social diversity of the profession. There is a perception that the GDL can operate to the detriment of good graduates from less elite law schools:

[W]hat’s happening is that the First class student from [post 1992] is being relegated in order to catch a 2:1/2:2 borderline History student from [Oxbridge].

Academic

Diversity schemes

6.35     Discussion Paper 02/2011 noted the substantial level of activity designed to encourage and enable more diverse entry into the traditional professions,[20] and recognised the concerns that had been raised as regards the coherence and variable impact of such activities.

6.36     Activity includes outreach work both by the universities, and the professions. Concerns have, however, been raised about the lack of evidence of impact for much of this work. The developing national strategy for university activities includes an assessment of the feasibility of a common evaluation framework for institutions to assess the targeting and impact of their access and student success activities. This is due to be published in August 2013.

6.37     In terms of profession-led activity, recent initiatives like PRIME, and the Pegasus Access Scheme have been highlighted as models of good practice that take a more co-ordinated and impact-led approach to improving diversity of access. PRIME thus sets out, for the first time, minimum standards identifying those whom work experience should be reaching and what it should achieve. Law firms signed up to PRIME must provide a number of work experience places that is not less than 50% of the number of training contracts they offer each year. In its first year of operation the scheme, which has over 80 law firms now involved, created 751 placements, equating to 60% of the number of training contracts on offer from 20 of the 22 founder firms. The evaluation report of the first year was positive about what had been achieved, noting that 82% of participants fell within the diversity criteria of the scheme, and that the majority of placements worked well, with students reporting increases in confidence, skills and motivation as a result of their experiences (Kettlewell et al, 2012).

6.38     The Pegasus Access Scheme is an initiative to provide work placements (mini-pupillages) to school and university students who meet diversity criteria. The scheme was launched by the Inner Temple in partnership with Pathways to Law, the Social Mobility Foundation, the Warwick Multicultural Scholars Programme, and the Inner Temple Schools Project. It currently has 58 participating chambers. Evaluation work on this and other Inner Temple diversity initiatives is being conducted by Keele University.

6.39     The critical question for such initiatives is whether they have an appreciable impact on recruitment as well as work experience. It is too early to tell in respect of new initiatives like PRIME and the Pegasus Scheme, and many existing schemes lack formal evaluation. Encouragingly, in its evidence to the research team the BSN reported that

BSN’s Diversity League Table[21] of the recruitment by the leading firms and Chambers shows that these initiatives are beginning to make a difference in the recruitment of BME trainees.

6.40     However, while the BSN League Table shows a significant increase in the proportion of ethnic minority trainees between 2006 and 2011 (from 10% to 16%) that has not (yet) been mirrored by proportionate increases at associate level.[22]

Fair access: the way ahead

6.41     There are significant limits on what regulation can legitimately do to influence cost in a market-led system of education and training. The proposals in this report seek to address cost, so far as they can, by increasing access to information about the risks of entering high-cost training, and the alternatives that exist, and by encouraging the development of flexible modes of training that will increase opportunities to ‘earn while you learn’ or complete the qualification pathway by means other than, say, a conventional training contract or pupillage.

6.42     Another issue that has been linked to the increasing cost of training is whether there should be a guaranteed normal minimum salary for trainee solicitors and pupil barristers. The SRA decided in 2012 to remove the existing minimum salary requirement for training contracts. The decision was based on a formal consultation exercise and equality impact assessment. It was a controversial and finely balanced decision which generated considerable comment at the time within the profession, and in responses in the LETR research data. So far the BSB has not chosen to follow suit.

6.43     The report does not intend to address the question of minimum salaries, despite respondents reservations about the impact on diversity of such a change. It is not the function of this report to challenge the decision taken by the SRA, other than on clear evidence that its evidential basis was flawed and there has been no suggestion that there was a failure to follow proper process. It is, however, recommended that the decision’s impact is kept under review, to evaluate so far as possible whether there is any correlation between removal of the minimum salary and an increase in the availability of training contracts outside the commercial sector and any reduction in the numbers of training contracts obtained by BME applicants.

6.44     The data discussed so far indicate a growing awareness of a continuing need to address diversity within the traditional legal professions, and the development of a range of activities intended to broaden access. However, it also highlights the continuation of selection and recruitment practices, including use of tariff scores, internships and informal work experience, which serve, at worst, to block and, at best, to slow down change, and a general lack of coordination and monitoring of diversity activity.

6.45     Fair access policies cannot create jobs, as members of the Young Lawyers Forum acknowledged:

You can’t create more jobs (unless there are in-house jobs where employers would be happy to allow people to qualify if the regulations permitted). So the problem is about who gets the jobs that there are. Different socio economic groups have different attitudes to risk – if you change the bottlenecks, do it to increase the social mix of those who can go into it, not to try create more jobs.

Young Lawyers Forum

6.46     However an effective fair access strategy can deliver support for individuals from relatively disadvantaged backgrounds: it can provide more information, advice and guidance about the current situation, and research to monitor the effect of changes and strategic interventions; regulation and guidance on work experience and internships can be introduced or strengthened where required, and flexible, lower-cost, routes into the traditional professions can be developed (cf Professions for Good, 2012). A number of such strategies are proposed in the remainder of this section.

Use of contextual admission data

6.47     Contextual data are:

data used by universities and colleges which puts attainment in the context of the circumstances in which it has been obtained; currently mainly educational, geo-demographic and socio-economic background data.[23]

6.48     There was some support for the use of contextual data among respondents, but there is generally a lack of shared understanding across both the HE and legal services sectors as to the nature and purposes of contextual data, the value it adds and the methodologies used. This was reflected in uncertainty and some confusion in responses to Discussion Paper 02/2011.

6.49     There is, however, growing pressure on the HE sector to make greater use of contextual data, subject to appropriate safeguards.[24] Steps are being taken by UCAS to provide various categories of contextual data to institutions. This initiative has been robustly supported by the Milburn Report (2012b) which draws, among other things, on the established and growing body of evidence showing that students from less advantaged home and school backgrounds do at least as well as their more advantaged peers at university, even when they enter with slightly lower grades. Although the use of contextual data in admission to law – and other – degrees is a matter for other authorities, the evidence available does suggest that it is a development that should be further encouraged.

6.50     Developing contextual data for admissions to vocational courses is complex and a matter on which there is much less information and experience. Research and development should be undertaken to establish robust contextual data for vocational training.

Flexible education and training modes

6.51     The development of alternative pathways into the legal services sector could play a critical role in enhancing diversity, particularly if they reduce cost and other barriers to LSET. However, it is troubling to note that responses in the research data reveal limited awareness and understanding amongst prospective entrants – and some employers – of the range of pathways that already exist, such as sandwich degrees, suggesting that more should be done to highlight the options that are currently available.

6.52     The relative lack of variety in models of vocational training has the potential to restrict development of a more competitive market in vocational training. There is also a lack of information on the performance of vocational providers, including pass rates and data on the diversity profile of the institution or centre. Without such information, the development of a properly transparent and competitive market in vocational training is inhibited.

6.53     The divide between academic and vocational providers (for those professions where this is the case) can also be unhelpful as it may restrict the development of alternative provision, such as exempting degrees, that have the potential to reduce the financial burden on prospective trainees.

6.54     Alternative routes such as apprenticeship, the development and professionalisation of paralegal roles, and pathways such as work-based learning (discussed below) are likely to be important levers for increasing diversity, and should be supported by regulation.

Access to work experience

6.55     Access to work experience continues to be a critical success factor. The commitments by the profession to widen access to work experience are welcomed and encouraged, but problems continue with the accessibility of placements, particularly insofar as access at secondary school level appears to be becoming increasingly important to future career opportunities. The division between formal and informal work experience must be reduced, and proper, transparent and fair processes for selection should be employed in respect of all individual work experience opportunities (as distinct from group or short individual visits to a workplace)

6.56     The growth of internships raises a similar concern. Existing practices in some firms clearly run counter to the best practice advice offered by initiatives such as Professions for Good (2012) and the Common Best Practice Code (Gateways to the Professions Collaborative Forum, 2011). The Milburn Report (2012a) has also been highly critical of what it perceives to be an ‘explosion’ in internships in the professions:

Access to work experience is a new hurdle that would-be professionals now have to clear before they can even get onto the recruitment playing field. Given their centrality to young people’s career prospects, internships should no longer be treated as part of the informal economy. They should be subject to similar rules as other parts of the labour market. That means introducing proper, transparent and fair processes for selection and reasonable terms of employment, including remuneration

Milburn, (2012a:23)

6.57     Accordingly it is proposed that approved regulators have formal guidance in place regarding the offering of internships.

6.58     The importance of monitoring and evaluating diversity initiatives was highlighted in Discussion Paper 02/2011; this need has also been highlighted by Milburn (2012a). The commitment to evaluation of PRIME and the Pegasus Access Scheme is welcomed. Whilst this should not be a function of regulation as such, it will be argued in the final section of this chapter that there is an important co-ordinating function that needs to be addressed, and for which there is some support from the research data.

Access to good quality information

6.59     Professions for Good (2012) recommends that professional bodies and regulators should take the lead in providing high-quality information, advice and guidance to school pupils about professional careers. That recommendation is supported, but it is noted that it may do little to assist  those mature entrants who are outside the school system. LETR research data highlight the extent to which a lack of access to readily accessible independent and good quality information about opportunities and pathways is a general problem for prospective entrants and advisers. This issue is also addressed in the final section of this chapter.