Time for reflection but deserving a response

The editorial from the Summer 2005 issue of Directions, by Roger Burridge (then UKCLE Director) and Amanda Fancourt (then UKCLE Vocational Education Developer), reflects on the latest proposals put forward by the Law Society of England and Wales in its Training Framework Review.

See our Legal Practice Course review page for full details of the Training Framework Review.

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The Law Society of England and Wales’ Training Framework Review (TFR) has upset representatives of almost every sector concerned with legal education. The academics are alarmed by the suggestion of major changes to the core knowledge required that could entail major changes to the undergraduate curriculum. The vocational providers foretell the end of the Legal Practice Course (LPC) as they know it. The firms are shocked by the potential cost of a work-based learning programme and the portfolio assessment that are proposed to replace the training contract. Everybody is bemused by the prospect of a final assessment of the proposed outcomes.

The need for progress

There are sound reasons for conducting a review and for seeking ways to improve on past success. The traditional law degree has become somewhat ossified. The lecture/seminar format is still the underwhelming student experience for learning. Lack of diversity amongst entrants to the profession has been identified as a major source of concern for the administration of justice. Providers including law schools have not generally been tempted to explore new programmes combining the different stages. The LPC struggles to meet in nine months the divergent practical concerns that the modern solicitors profession encompasses. Many training experiences are uneven and unregulated. The cost of qualification is ever increasing. Some would say that in the light of these challenges the Law Society’s review is overdue.

That said, as the TFR consultation frequently admits, the current qualification process has many strengths. There is no crisis that demands root and branch reform. Firms on the whole appreciate it. The rest of the world continues to have much respect for the quality of UK lawyers. Any proposals for new models therefore need careful risk assessment before design becomes production. If the vision of the consultation is the enrichment of current pathways with new initiatives, such an aspiration is admirable. Its period of gestation deserves to be lengthy, and the more radical the proposals, the more testing and piloting is necessary.

What are the educational and training implications?

The consultation places heavy reliance upon teaching and training innovation. This is to be cautiously welcomed. Caution is necessary because our understanding of the methods and approaches that are espoused are still very much in their infancy. The proposals support the benefits of non-traditional methods, such as clinical approaches, portfolio compilation, non-traditional assessment (including computer-based approaches) and work-based learning. Each of these would be an effective and welcome addition to the learning experiences of both students and trainees. The problem is that to be effective need to be integral to a learning programme. They also require robust quality assurance mechanisms.

From October 2005 all students in higher education will be required to demonstrate achievement and track their personal development evidenced by examples of their ability compiled in a portfolio. Few law teachers as yet have much experience of personal development plans, and their usefulness either as a reflective learning tool or as an assessment mechanism has not yet been fully explored, although Webb, Maughan and Purcell’s report for the TFR Group throws much light on the potential and pitfalls of their role in promoting professional competence.

Work-based learning is recommended to replace the training contract, which many regard in its present form as an uneven and sometimes negative experience for many trainees. Increased emphasis upon mentoring and external assessment would offer considerable improvement. Again, the obstacles to adopting such an approach are surmountable, but will require considerable investment in new expertise and resources from firms and a cohort of trained external assessors. It is the cost and invasion of law firm culture and confidences that may pose the greatest obstacle to the early adoption of work-based learning as a replacement for the training contract.

The proposals appear contradictory, in that they seem to advocate wholesale deregulation to encourage new programmes whilst apparently maintaining an emphasis upon regulation and monitoring for programmes (new or current) which combine teaching and assessment. The third consultation seems to be confused as to whether regulation of the learning process is contemplated or not. Certainly it promises monitoring and regulation of providers who continue to offer LPCs. For those seeking non-traditional pathways to demonstrate that they have fulfilled the outcomes successfully, the Law Society will abdicate all responsibility for enquiring into how the knowledge and competences were acquired unless such programmes also assess students.

This may be an admirable example of market liberalisation, but the deregulation of education and training programmes is contrary to our understanding of how people learn effectively and ignores the effect that the experiences of learning have upon the quality of the knowledge and abilities that are acquired. Deep learning, we are told by the educationists, occurs in active and experiential contexts. Clinical teaching, which the proposals commend, is widely regarded as the most effective methodology for exploring and inculcating ethical understanding and judgement. If deep learning, an ethical appreciation and experiential learning methods are desired objectives of the reform it seems almost perverse to eschew any responsibility for ensuring that entrants to the profession have successfully undertaken such programmes.

These contradictions would have serious implications for the concept of professional practice. Whilst there is welcome emphasis upon an appreciation of ethical issues and the study of professional conduct, the lack of any prescription of the learning process through which this is likely to be achieved belies a more serious deficiency. There is no concept of ‘being a professional’. Professional identity is reduced to demonstrating a series of abilities. Important though these are for the success of a solicitor’s business, they provide little guarantee that entrants to the profession have been part of a collective enterprise where they have learnt with and from others the significance of the power and influence that such knowledge brings.

Will the TFR achieve its objectives?

There has to be a high risk that the recommendations will not achieve the TFR’s objectives. It is quite possible that the proposal to deregulate the qualification process will promote new pathways. Unfortunately, however, there is little prospect of this having much impact on the lack of diversity in the profession, at least in its upper echelons. School and university background are the prime determinants of success in the legal professions. Senior judges are still largely the product of fee paying schools (85%) and Oxbridge (81%). Magic Circle partners are slightly more diverse, with 55% and 53% coming from fee paying schools and Oxbridge respectively. Furthermore, increasing diversity amongst entrants to law schools and in Law Society enrolment is already occurring, albeit not to a socially representative extent. Both of these trends indicate that additional routes to qualification are unlikely to produce greater diversity amongst the legal elite.

Nor are the proposals likely to reduce the cost of qualification, and they could in their present form exacerbate the plight of poorer students. Since there no longer needs to be an institutional nexus between teaching and assessment, students will have the choice of paying for training with little or no redress from the provider when they subsequently fail to pass the assessments. Poorer or weaker students will be most susceptible to enrolling on programmes that result in repeated attempts at achieving the outcomes. Sponsored students from City firms will continue to benefit from a few privileged programmes. Increased diversity is likely to be further defeated.

Teaching quality assurance, and even more so enhancement, is however the main cause for concern if there is to be no regulation of the learning process. Quality assurance has been one of the main achievements in both the higher education and vocational sectors in recent years. The recommendation to rely exclusively on outcome achievement abandons the idea that professional understanding and ability are achieved through exposure to a variety of learning experiences and that experience is integral to the outcome.

So what is the verdict?

The Law Society has invested much energy and money in successive TFR consultations. The TFR initially found strong support. Has it failed its enthusiasts?

The foreword to the second consultation urged reform before there is a crisis in the qualification scheme. The observation was premature then and it still is. There is no crisis, but there are great opportunities to build upon a strong and successful programme so that it can better address emerging challenges. Many of these could be of interest to law schools and existing providers. There is considerable scope for law schools to seek out and analyse the evidence, to evaluate the experiences, and to develop the details that the consultation as yet so markedly lacks. There is a considerable vacuum in these proposals which given time law schools and others could aspire to fill.

To achieve this, law schools will need to register their interest and argue their case. Those concerned about the development of legal education should familiarise themselves with the latest TFR and consider a response. UKCLE will be urging the Law Society not to adopt the current proposals until its recommendations have been developed, costed and tested. When they have been test driven, it could be safe to deregulate qualification as the consultation suggests.

In our view, however, the TFR objectives and many of the proposals are already achievable with greater support from the profession and more imagination from potential providers. At the very least the Law Society needs at the earliest opportunity to reassure students, law schools, providers and firms that it will not relax its quality assurance standards until alternative mechanisms are in place to address the quality and variety of the learning experience. If it does not do so it is risking irreparable damage to the quality and character of the UK legal profession which would have serious implications for UK legal education in the wider world.

Last Modified: 4 June 2010