Vocational legal education in Scotland: a model of partnership in action

Liz Campbell, Law Society of Scotland

Opening address at Vocational Teachers Forum IV, 8 January 2005

Liz’ opening address at Vocational Teachers Forum IV provided an overview of developments regarding the Diploma in Legal Practice in Scotland.

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Solicitors’ training in Scotland has been constantly under review since 1994. During that time, much of the focus (some might argue too much of the focus!) has been on the Diploma in Legal Practice, the ‘bridge’ stage between the academic LLB and the two year practical training under the supervision of a solicitor. Although on the surface there are many similarities between the structure of the Scottish system and that of England and Wales, the practicalities of delivery differ between the two jurisdictions.

This presentation:

• set Scottish vocational legal education in the wider context of solicitors’ training in Scotland
• detailed the partnership approach to the Diploma which exists amongst the Law Society of Scotland, the Diploma providers and the two branches of the Scottish legal profession
• discussed which aspects of the present Diploma structure are most effective, and why and which could be improved and how
• outlined the Society’s current thinking on the future direction of the Diploma
• expanded upon the debate currently being engaged in as to whether the Diploma should be delivered via a set of core materials or on the basis of agreed outcomes
• explained the initiatives the Society has engaged in as part of the review of training to attempt to ensure that those who are admitted to the profession of solicitor are, in fact, ‘fit and proper’ to do so. Particular emphasis was placed on the Society’s experience of piloting a Test of Professional Competence to be undertaken at the completion of the training contract.

Vocational legal education in the wider context

At present there are two routes to qualification as a Scottish solicitor in the initial stages. By far the most common, undertaken by in excess of 95% of intrants, is to obtain a Bachelor of Laws degree from one of nine Scottish universities accredited by the Society. A qualifying LLB degree must contain certain ‘core’ or ‘professional’ subjects, specified by the Society.

The alternative route to qualification involves entering into what is known as a ‘pre-Diploma training contract’ with a Scottish solicitor. This is a three year contract during which time the solicitor undertakes to provide training in conveyancing, litigation, and either trusts and executries or the legal work of a local authority. During the training period the trainee must pass the Society’s own professional exams, which mirror the core subjects required in the LLB degree. The professional exams are to some extent a hangover from pre-LLB days, when qualifying by means of the Society’s exams was the norm. Now, the exams provide a viable alternative route to qualification for those for whom attendance at university is not feasible.

At any one time we may have up to ten trainees qualifying in this manner. As you can see from the relative figures it is by no means as popular a qualification avenue as the LLB degree. There are two main reasons for this; firstly, it is no easy street to qualification, as we supply a syllabus and reading list only and the individual studies for the exams his or herself, sometimes without a great deal of support even from the training firm, and secondly, the Society’s exams act only as a qualification to become a solicitor, unlike the LLB degree which can be used as a stepping stone to many careers.

Whichever of the two initial paths is followed, with very few exceptions all intending solicitors require to obtain the Diploma in Legal Practice, which is the vocational ‘bridge’ stage between the academic waters of the degree and the practical traineeship with a solicitor. (It is possible to apply to the Admissions Committee for an exemption from the Diploma, which may be granted in exceptional circumstances. To date, exceptional circumstances have been taken to mean geographical remoteness from a Diploma centre combined with family responsibilities – bearing in mind that the Diploma is offered only on a full time basis – and taking into account any previous relevant experience.)

At present there are four Diploma providers; the universities of Aberdeen, Dundee and Edinburgh and the Glasgow Graduate School of Law, which is a joint venture of the universities of Glasgow and Strathclyde. As of September this year they will be joined by the Robert Gordon University, which received accreditation in 2004 from the Society to run a Diploma. The Diploma is a 26 week course, the aim of which is to bridge the gap between the LLB and the traineeship and to equip students with the skills they will require to flourish in their training firms.

The final stage of a solicitor’s training involves a two year training contract with a Scottish solicitor. Unlike England and Wales, there is no requirement to cover a certain number of legal practice areas in training and it is possible to undertake a very narrow training. During the training all trainees must complete logbooks relevant to the legal practice areas they are exposed to. The logbooks detail a range of aspects of individual legal practice areas relevant to the work of a trainee. There is no requirement for a trainee to ‘tick off’ each and every area. Rather, they are intended as a tool to be used by training supervisors in discussing progress with trainees to identify where a trainee is lacking experience and to plan the next quarter’s work for the trainee. These planning sessions take place at quarterly meetings, where the trainer and trainee are required to discuss the trainee’s work, review performance and set objectives. This is designed to be a quarterly ‘mini appraisal’. Arising from this meeting, trainer and trainee complete a quarterly performance review which is forwarded to the Society for monitoring.

All trainees are required to attend a Professional Competence Course (PCC), comprising 36 hours of core modules and 12 hours of electives. Some of the larger training firms have been accredited to run the PCC for their own trainees, although most trainees attend commercially provided PCCs, offered by universities or local groupings of solicitors.

Although trainees may apply for admission as a solicitor after one year of training, to enable them to gain experience of court appearances during their second yea, they are only fully qualified on discharge of their training contract at the completion of two full years of training, and the contract may only be discharged if all elements of the training have been completed.

Partnership approach in the Diploma

As there are only four providers of the Diploma, none of which is more than a two hour journey from the Society’s offices, a partnership approach to the provision of the Diploma has been easy to facilitate. The Diploma was established in 1981, and from its conception was a partnership between the Society, the professions and the academic institutions. Unlike the situation in England and Wales, solicitors and advocates in Scotland have a common route to qualification through the Diploma and therefore the Faculty of Advocates has an interest in the Diploma also.

How does this partnership actually work? The main vehicle for co-ordination is the Diploma Co-ordinating Committee (or DCC), where representatives of the Diploma units and the two professional bodies meet on a quarterly basis. It is this body which has historically determined the subject matter of the Diploma and the content of the syllabus, however it has not always been as pro-active a body as it might have been. Part of the reason for that is that we have a situation in Scotland which can be regarded as a bit of a mixed blessing. We are fortunate to have allocated to the Diploma 300 fees awards from the Students Awards Agency for Scotland (SAAS), which means that 300 of the 520 or so students studying for the Diploma in any one year will have a large proportion of their fees paid and some of them will also receive maintenance awards. Why should this be a mixed blessing? The answer to that lies in the fact that the SAAS delegate the allocation of the awards to the Society, and it is then the task of the DCC to select the 300 fortunate students on the basis of academic merit, which is the only means available to us as we are unable to conduct any form of means testing. We are acutely conscious of how unfair this is! The knock-on effect of the awards selection is the amount of committee time taken up in this exercise.

For 20 years, the only accreditation of Diploma providers took the form of the providers being named as such in the Admission Regulations. The institutions and the Society worked so closely together through the DCC that we were relatively relaxed that what was being delivered on the Diploma was the syllabus as agreed between the Society and the institutions. Reviews of the content of the Diploma and of the teaching methods were undertaken periodically, and in 2000 a remodelled Diploma was launched which focused to a greater extent on skills training and less on the black letter law which had gradually been allowed to creep into the syllabus.

At around the same time the Society introduced an accreditation scheme for LLB providers in response to requests from post-1992 universities wishing to offer a qualifying degree. The Professional Competence Course was launched in 2001, and from the outset could be offered only by providers accredited by the Society. It was somewhat anomalous that the Diploma, the gateway to practise as a solicitor, should sit between these two elements and yet not be subject to any accreditation by the professional bodies.

The true catalyst for Diploma accreditation came in the form of a request by a new provider, the Robert Gordon University in Aberdeen, to offer a Diploma in Legal Practice. This was the first approach from a potential new provider which the Society had received in the 20 plus years of the Diploma, and it was swiftly realised that this could be the first of a number of such applications. With more providers, the previous dynamic could not be retained.

The accreditation scheme obviously places the Society in the position of ultimate arbiter of whether an institution may or may not offer the Diploma, however there are two other aspects of partnership which exist. The first of these relates to how the Diploma is actually delivered. Each of the Diploma providers employs a limited number of permanent staff to both administer the Diploma and to teach on it, while the bulk of the teaching is delivered by practising members of the professions; both solicitors and advocates whose ‘day job’ is to practise the law and who act as part time Diploma tutors, recruited and trained by the individual providers.

The other aspect is the input of the Society, in terms of both financial and of human resource. The Society makes a financial contribution to the Diploma, as, does the Faculty of Advocates. We fund the operational costs of the DCC and subsidise the production of the Diploma materials. Senior members of the Society’s staff, including the Directors of Professional Practice, Client Relations, Education and Training and, significantly, the Chief Executive, meet annually with Diploma students to discuss the work of the Society and its Council and committees and the role the students can play as trainees and young solicitors in the affairs of the Society. If you wish you can view this as a cynical marketing ploy, but it is also an attempt, to ‘win the hearts and minds’ of those about to enter the profession and to demonstrate that the Society is staffed by ordinary individuals working hard in the best interests of the profession and not, at least not entirely, a bunch of middle aged men in grey suits who inhabit some ivory tower divorced from the realities of the issues affecting students, young lawyers and the profession generally. This initiative is relatively new, having been instituted only about four years ago, but early indications are that it is reaping benefits.

Pros and cons of the present Diploma structure

In December 2004 the Society hosted a conference on the future direction of the Diploma. The conference had its genesis in research undertaken for the Society in the summer of 2003 into the perceptions of trainee solicitors and their trainers of the Diploma, focusing on which aspects of it were meeting the needs of the profession and which could be improved and how. The results of the research demonstrated support for the continuation of a Diploma, but desire for changes to structure and content.

During the course of the day, we conducted a SWOT analysis and many of the strengths identified corresponded with my own impressions of the most effective aspects of the Diploma:

• the willingness of the profession to give up fee earning time to be involved in the delivery of the Diploma
• the depth of training of transferable skills
• the emphasis on small group teaching
• the range of topics covered, meaning that specialisation does not occur too early in students’ careers
  In true Scots tradition, of course, our list of weaknesses was longer than that of our strengths, and, as with any SWOT analysis, depending upon one’s individual ‘take’ on matters, areas that some saw as strengths, others viewed as weaknesses:

• lack of agreement on the aims and outcomes of the Diploma
• lack of consistency in delivery, teaching methods and assessment amongst the providers and the perception that there are ‘easy’ and ‘hard’ Diplomas at different providers
• skills training in a vacuum, meaning that students often do not understand the relevance of what is being taught
• centrally produced materials stifling creativity and leading to lack of credibility for the Diploma if they are inaccurate
• lack of performance standards
• lack of linkage between the LLB, the Diploma, the PCC and solicitors’ CPD requirements
• the cost (around £4,000 per annum)
• lack of teaching skills of some practitioners tutoring on the Diploma
• the lack of integration with the traineeship and of direct links with training firms

Opportunities for the development of the Diploma

Since the inception of the Diploma there has been in existence a set of core materials for each of the courses that comprise it. The DCC agrees one or more authors for each course and the Society then contracts with the authors to produce a set of materials which meet the outcomes for the individual courses. The materials are then printed and bound by a commercial publisher and distributed to the universities for onward transmission to their students. The publisher invoices the universities, the universities recoup the costs from the students, the Society receives a royalty from the publisher and the Society pays the authors. Under this model the Society subsidises the production of the materials. The theory behind this is that contracting with the authors gives the Society some control over the content of the materials.

Each year we actively seek feedback from the universities, the tutors and the authors (most of whom are also tutors) on which aspects of the materials have been successful and the changes which are required for the following year. The aim of the feedback is to give guidance to the authors on preparation of the materials for the following year.

This system does not work to anyone’s satisfaction. There is not one of the nine component Diploma courses where we would obtain agreement from all four providers that the materials are adequately meeting their teaching needs. Some of the Diploma providers have openly abandoned use of one or more sets of materials in favour of materials they have produced themselves and which better serve the institution’s teaching style or needs. This leads to several problems. For one, most of the providers still take the centrally produced materials and pass them and the cost of them on to the students, but do not use them. You can imagine the response to that by debt ridden students! Further, in spite of the partnership approach adopted, there is no agreement amongst providers on which materials require to be changed and how, and no sharing of locally produced materials. Also, the production of centrally produced materials to allow the Society some control over the Diploma turns out to be a myth, because we are not accrediting the existing Diploma providers at present, and if the centrally produced materials are not being used, we have no way of knowing what is being taught.

Should we retain core materials in the long term? There has been a push from some areas to move to an outcomes based approach to the Diploma, which would see the abandonment of core materials and, in their place, assessment of Diploma providers on their delivery of the outcomes. This suggestion has not met with universal favour amongst all of the Diploma providers, some of whom wish to retain the centrally produced materials. The Society has been treading a fine line on this one, as we wish to move forward in partnership, but have no desire to delay development by engaging in yet another protracted consultation process, the result of which may be a compromise solution which meets none of the original aims!

We asked participants at the conference whether the Society should examine further:

• the curriculum/syllabus of the Diploma
• defining a set of skills outcomes for the Diploma
• a model based on a ‘core’ and further ‘electives’
• retaining the core materials in the current form
• retaining the core materials, but in an amended format
• issues of access and flexible learning in the Diploma
• assessment at the Diploma stage
• developing a portfolio for use in the Diploma or in the Diploma and traineeship

To each question, but one, participants responded with a ‘yes’, in the case of the curriculum/syllabus and defining skills outcomes, with an overwhelming ‘yes’. The one area where we received a negative answer was in relation to retaining the core materials in the current form, but there was considerable support for retaining core materials in an amended format. The blame for ‘poor’ materials was laid firmly at the Society’s door, which is interesting, considering that the approach to Diploma delivery is one of partnership! Some respondents supported development of the materials in an electronic format.

We also received a number of written comments at the conference on the development of a Diploma model based on a ‘core’ and ‘electives’. Although we tend to think of the entire present Diploma content as compulsory, this is not, in fact, the case. Of the nine component courses, only seven are compulsory, and students must choose between Company & Commercial and Public Administration to make up their eighth course. In the early days of the Diploma there were many more traineeships available in local authorities than at present, and it therefore seemed to those developing the Diploma that students would pursue traineeships in either corporate practice or public administration. There is then an underlying assumption that there would be no crossover from one area of practice to another for these students in their future careers. Why only these students? Why not the same assumption for the student going into a criminal court practice or a conveyancing practice? In my view, we either have a more detailed core and elective model or we make the entire Diploma content compulsory.

There is concern, demonstrated by responses to both the 2003 research and the conference feedback, that a core and elective model could lead to specialisation too early. Interestingly, Diploma students often tell us that that is what they want; trainees, however, were amongst the most vociferous respondents against early specialisation. Conference participants were in support of the retention of a broad core.

The development of defined outcomes as the basis of accreditation of both existing and any future providers of the Diploma is under consideration, together with the abandonment of centrally produced materials co-ordinated by the Society. However, there is no reason why core materials cannot be developed by a consortium of providers to meet specified outcomes. Law Society of Scotland resources could then usefully be redeployed in supporting Diploma delivery in other, more effective, ways, and universities have the opportunity to innovate.

The Society has been accused of focusing unduly on the Diploma in Legal Practice and neglecting other areas of solicitors’ training. The balance may be redressed by giving attention to two other areas:

1. the LLB degree, or more accurately, the professional content of the LLB and the Society’s own professional exams – do these remain focused on the areas of law most relevant to 21st century legal practice? As just one example, there is no requirement to study any employment law in either the degree or the Diploma.
2. the traineeship – the authorisation of training practices could be introduced. At the moment, any solicitor may take a trainee, unless they have been expressly prohibited from doing so (currently that prohibition applies to one firm). An effective system of authorisation is needed, with the Society having some sharp teeth to refuse authorisation when appropriate. Part of the authorisation process should be the compulsory training of all solicitors involved in training future members of the profession.

Test of Professional Competence

Ensuring that each intrant to the profession is ‘fit and proper’ is a requirement placed upon the Society by the Solicitors (Scotland) Act, however the Act is silent on any form of definition of ‘fit and proper’.

When an intending trainee applies for an Entrance Certificate to commence training, we consider criminal convictions, bankruptcy and any other relevant matters which may have come to our attention. Once a training contract has commenced, however, matters reside to a much greater extent with the training solicitor. Historically, sole responsibility for determining whether a trainee is ‘fit and proper’ prior to admission as a solicitor and at the completion of training has rested squarely on the shoulders of the trainer. Some trainers have expressed concern at this. They may have had a vague feeling that there was something ‘not quite right’ about a trainee, but that feeling was so intangible that the trainer was reluctant to refuse to sign a discharge. I have had it said to me by one trainer that he was reluctant to discharge the training contract but did not wish to ruin the trainee’s future career, and by another that he was concerned that any refusal to discharge might be seen as some form of discrimination in the case of a trainee from a minority ethnic background. Laudable aims, but what of the profession as a whole, which would have to pick up the pieces if something goes wrong once the trainee is a fully qualified solicitor and able to practice on his or her own account? That is where the role of the Society comes in, and reflects our aim in considering a Test of Professional Competence of establishing independence of assessment.

In 1998 the Society’s Education and Training Committee submitted a proposal to the Society’s AGM to the effect that every trainee commencing training from May 2000 onwards would be required to pass a Test of Professional Competence (TPC) at the end of the traineeship. The intention was that the Test would identify those intending solicitors who were not ‘fit and proper’ persons to enter the profession. There was to be no attempt otherwise to grade people, nor was the Test to establish excellence. The TPC was intended to eliminate people who should not, in the interests of the public and/or the profession, progress to a Practising Certificate.

From the outset the Society grappled with the question of what form the Test should take and what should comprise the content. One of the underlying problems was the fact that, once qualified, a solicitor is entitled to hold a general Practising Certificate which entitles him or her to practise in any area of the law. If this position was to remain, then surely there must be some form of ‘omnicompetence’ test which assessed whether or not, at qualification, the solicitor had the requisite knowledge to practise in any area. What form could such an assessment possibly take? Would it be sufficient to focus on ethics and professional responsibility? If so, should there be a separate paper on ethics, or should ethics be the ‘golden thread’ running through all papers? Should trainees be permitted to take a Test only in one very narrow area if they had been trained only in that area? Or should a narrow training automatically mean that there was a requirement to be tested in other areas?

Our first pilot exam ran in June 1999 and covered the legal practice areas of Conveyancing, Private Client and Civil Litigation. All of the trainees passed; many passed with exceptionally good marks. Were they a particularly talented group of trainees? Perhaps. But more likely their success was due to the fact that we were not testing their professional competence but their ability to pass yet another traditional assessment.

In the light of these results, it was back to the drawing board. It was our desire to create a Test that was going to be both rigorous and to reflect, as far as possible, the realities of practice. At this stage we had the sense to see that we needed some external, expert advice. That advice came in the form of Alison Bone and Nick Johnson, who were contracted by the Society as consultants for the development of a Test of Professional Competence. It was agreed that development of a TPC would commence in January 2000, with an end date of July 2001 for a second pilot TPC. A panel of four members, made up of two academics (one of whom was also a solicitor) and two practising solicitors, was established to work with the consultants.

The consultants reported in August 2000. Four models were put forward to the Education and Training Committee for consideration:

• model A – a closed book examination testing knowledge of the area in which the trainee has specialised
• model B – a critical incident analysis
• model C – a project
• model D – a compilation of a project and a completed training record, including an analysis of one critical incident

The committee favoured model D, although the report acknowledged that there were potential drawbacks, as this model was particularly time consuming and may have proved too burdensome on all those involved. In addition, there were drawbacks to the individual components which would still exist in a compilation model.

Although the Education and Training Committee initially approved the adoption of the compilation model by November 2001, concern was being expressed about the development of a model which comprised training record and project. There was a growing concern that to meet the expectations of Council and the profession, and to avoid the risk of plagiarism, a formal examination should be introduced. The expectations of Council and the profession arose from the fact that we had used the word ‘test’ with all its connotations of ‘examination’ and, in fact, had incorporated the term into the 2001 Admission Regulations by that stage.

The panel was disconcerted by this change of tack, but rose to the challenge and came up with a fresh proposal. In this new proposal, a case study file would be issued to trainees. Four weeks later, trainees would be required to attend a formal examination, at which further documents would be given. Under examination conditions, trainees would be required to assimilate this new information and to tackle previously unseen issues and problems. It was this model which was ultimately piloted.

As a pre-requisite to sitting this ‘test’ trainees were to complete quarterly performance reviews and submit them to the Society for monitoring. Together the two elements, quarterly performance reviews and the ‘examination’, would form the Test of Professional Competence. It was agreed that the final version of the TPC should be available in Administrative Law, Criminal Practice, Company & Commercial, Civil Litigation, Family Law, Employment Law, Private Client and Conveyancing. Each area would have two examiners, both of whom would be practising solicitors with expertise in the relevant areas.

Ethics would not be examined separately, but ethical considerations would form a significant element of each of the papers. There was considerable debate about whether failure to spot an ethical issue and deal with it appropriately would be a ‘make or break’ issue. While opinion favoured ‘failure’ of the TPC as a result of failure to identify an ethical issue, the final decision was to be left until after the pilot. Trainees would be asked to volunteer to sit the pilot, with a small carrot on offer in the form of a book token and the opportunity to contribute to the development of the future shape of solicitors’ training!

The change of tack by the committee had led to delays, and it was proposed to run the first pilot in February 2002. The challenge was then on to prepare assessment guidelines and regulations and to train examiners for the first pilot. In retrospect, this is probably where some of the subsequent problems stemmed from, as the timescale was very tight. Having already delayed the process by one year, there was a reluctance on the part of the Education and Training Committee to propose further delay, and it was still hoped that the results of the first pilot could be used to fine tune the second pilot.

The first pilot covered only three of the proposed areas; Administrative Law, Criminal Litigation and Company & Commercial Law. Immediately following the test feedback was sought from the volunteers. The feedback was generally constructive, and two key points emerged. Firstly, most trainees did not find the test particularly taxing, and secondly, the ethics issues were considered to be unrealistic – as trainees they would refer all ethics issues to a partner. Obviously, in a test which was designed to mirror practice as closely as possible, this presented a challenge to us.

Further training of examiners took place in advance of the second pilot in October 2002. The volunteer trainees and their firms were fully briefed about what was expected of them. We thought that we had done all that we could to make the format clear to the trainees and to firms. The trainees were to use the four weeks between issue of the initial set of papers and the ‘exam’ to research the law and look at potential solutions to the issues they had been presented with. The ‘exam’ was open book, and trainees were permitted to bring into it the notes that they had prepared. On the day, they would be presented with further facts, in the way that they might be with a real transaction, and they were then to complete the exercise that was given to them, marrying together the two elements.

The TPC examiners met at the end of October to discuss the results. Without going into absolute ‘pass’ and ‘fail’ or ‘competent’ or ‘not yet competent’ results, I can say that the ‘failure’ rate was much much higher than we had anticipated. Why had this happened? We were dealing with bright young trainee solicitors and, remember, under the pilot of a previous TPC model, trainees had achieved extremely high pass marks. Were these just a particularly poor crop of trainees? Was there something fundamentally wrong with the whole training process? What was wrong, in my opinion, was everybody’s expectations of the TPC. In spite of everything we had said about it mirroring practice, trainees had sat down under exam conditions and instantly reverted to ‘exam mode’. They had, for the most part, completely forgotten about the preparatory work they had undertaken following receipt of the stage one materials, and responded only to the papers placed before them on the day.

On the face of it, it looked like many of the trainees had failed to spot the ethics issues, which would have been a cause for great concern, bearing in mind the original aim of the TPC was to identify those ‘fit and proper’ to be solicitors. However, subsequent feedback from trainees revealed that this was not the case. The fault lay in the construction of the TPC and the very fact that we had said it should mirror practice. Many trainees had identified ethics issues on receipt of the stage one materials, but, as the first pilot had revealed, their response in reality would have been to refer the issue to a partner. The papers presented to them under exam conditions were constructed in such a way as to lead some of the trainees to believe that the ethics issue had been resolved; others simply ignored it as the correct response in a real life situation would have been to refuse to act or to refer the matter to a partner, neither of which was an acceptable response in the TPC.

The TPC Panel met for the final time in November 2002 and agreed to recommend that the examination element of the TPC could not be taken forward, at least in the short term. The panel identified several reasons for its recommendation. There was a high risk of ‘getting it wrong’ in the real examination, which was proposed for February 2003. At that stage, we had not proved that an examination is a good method of assessing skills and competence. The profession had not sufficiently bought into the need to enable trainees to prepare properly for the examination. There are hugely different trainee experiences which affect the ability of trainees to perform well in the examination. Also, there is a rigid expectation of an examination, which is built on the whole prior educational process, that its purpose is to test academic knowledge rather than practical competence.

This recommendation was accepted. I had begun to have grave concerns about the TPC, not least in terms of the administrative burden of running it ‘live’ and what seemed to me to be the consistent underestimate of the resources it would take, both financial and human. Some of my concerns were those outlined in the recommendation. Others related to wider issues and were shared by the trainees and students to whom the proposed live TPC would apply.

The TPC would come at the end of potentially seven years of training to be a solicitor; it was a very late stage to put a final hurdle in place. In the absence of any form of authorisation of training practices, of compulsory training for the trainers and of effective monitoring of training, how could we be sure that it was the trainee who was failing rather than the training firm? Trainees can apply for admission to the roll of solicitors and a Practising Certificate after only one year of training. Although they give an undertaking at that stage to complete their training, in effect there are very limited circumstances in which a solicitor may be removed from the roll. Failure in a TPC is not one of them. Although we had taken legal advice, the best we had been able to come up with was an undertaking to surrender the Practising Certificate if the trainee failed both permitted attempts at the TPC. However, even that left us with a situation where a trainee might fail a first attempt before the two years of training were complete, but have to wait a period of time before the next sitting of the TPC, during which time he or she would have, technically, completed two years of training but be left in limbo as the TPC pass was outstanding.

The agreement not to proceed with the examination element was accompanied by an agreement to continue to review alternative forms of assessment. It was suggested that we may introduce another assessment at some point in the future, but that if we do so, we would intimate to students at an early stage of their undergraduate careers what form the assessment would take. If we do go down this route in the future, we will be ensuring that the process of managing the expectations of the various parties is complete first. However, no development work is presently being undertaken in relation to an assessment, although we are currently revisiting the whole question of assessment of ‘fit and proper’.

Although we ultimately abandoned the TPC, the process was not an entirely negative one, as we learnt many lessons along the way. One positive outcome came from the TPC Panel’s final meeting, which agreed that there should be consistent learning outcomes throughout the whole training process and that the student should be assessed at all stages and take the results of the assessment on to the next stage. The next stage trainer would then address any weaknesses in that performance. Although we are still some way away from this model, it is what we are striving towards.

Last Modified: 4 June 2010