At the point of qualification: reflections on the Law Society's Training Framework Review

In this article from the Spring 2004 issue of Directions Nick Johnson, Director of Advanced Legal Practice in the School of Law at the University of Warwick, reflects on the vocational stage of legal education – see our Legal Practice Course review page for full details of the Training Framework Review. (Note: an earlier version of this article appeared in the New Law Journal on 16 January 2004.)

Whilst most of us were celebrating the millennium, the Law Society was becoming embroiled in a controversy over vocational training. Eight City firms and three providers of the Legal Practice Course (LPC) had agreed to develop a radical new variant of the LPC which came to be known as the City LPC. In that controversy, it was difficult for the Law Society to distinguish the market based concerns of competitors of both the firms and the providers from the matters which should legitimately trouble the Society in its role as regulator of the LPC.

It was a messy business. The Society did (eventually) focus on issues of access and equal opportunity, but displayed unease at the development of a specialist variant of its generic course. That unease was compounded by statements from the City firms that the Society’s own standards for the LPC were, in part at least, inadequate as a preparation for City practice. Some in the Law Society, notably Roger Smith who was responsible for education and training, began to muse on the Society’s proper role in this area. Those musings led to the setting up of the Training Framework review group which produced its second consultation paper in the autumn of 2003.

The Law Society’s role is still a key, though immanent, theme of the paper. Ultimately it is the gatekeeper of the profession. The Solicitors’ Act 1974 gives it the power to make regulations for the education and training of prospective solicitors. But should a gatekeeper act as sentry, guarding the gate with an eagle eye, or should it venture out to regulate the traffic leading up to the gate?

The key issue is to ensure that candidates with inadequate knowledge or understanding or skills or integrity do not get into the profession. The consultation paper stated that the locus for demonstrating attainment of these qualities is the point of qualification as a solicitor. Yet if those qualities need only to be demonstrated at the point of qualification – in terms of the traditional model at the end of the training contract – then a number of important things follow.

Firstly, there could be many routes to Rome. The traditional route of law degree, LPC and training contract is already being challenged by increasing numbers of non-law graduates and overseas lawyers entering the English profession. Many in education and the profession feel that there are better models. The four year qualifying law degree, integrating the academic and the vocational stages, is offered only at Northumbria University. Part time routes integrating vocational training and work based learning are better suited to the flexible labour market of the new millennium. The consultation paper maps out nine possible routes to qualification which include a continuous pathway integrating academic, vocational and work based learning. It is possible to imagine other routes, and the consultation paper does not preclude them.

Secondly, concentration on standards at the point of entry could justify the relaxation of controls on higher education and vocational training. Innovative new models, new modes of delivery and new syllabuses could be developed. Several (if not a hundred) flowers could bloom. The expensive panoply of Law Society regulation of these areas could be scaled down to the sound of loud cheers from the profession and higher education.

Logically, rigorous airport security style, scrutiny of aspiring solicitors before they pass through the barrier into the profession could justify the removal of all prior controls. There are still diehards in the profession who think that a simple five year apprenticeship with no nonsense like a degree is the best preparation for practice. To avoid frightening too many horses, the consultation paper is firm on at least some of the parameters. The profession will continue to be all graduate. All aspirants must be taught ethics. The pathways to qualification should include elements of academic, vocational and work based learning in law. However two key issues are ducked. The paper is vague on the degree of specialisation which will be permitted before qualification. Further it does not lay down a minimum period for the training period as a whole.

Before these benefits (if indeed they are) begin to flow, three big questions need to be answered. The first one is how exactly will the Law Society decide whether or not the aspiring entrant to the profession has reached the outcome standards and who will do the assessing? The paper asks for comment on the outcome statements of knowledge and understanding, skills, abilities to perform transaction and resolve disputes and ethics which the aspirant will be required to demonstrate.

Interestingly, the Law Society of Scotland pursued the same theme a year or two ago. The Society considered whether or not a formal test should be taken during the last stages of the training contract. After two pilot studies it concluded that the idea was not feasible. Trainees were too distant from formal education, their experience on the training contract was too diverse, work based learning couldn’t be assessed by assessment methods devised for academic education. The idea of a formal test was shelved and the Scottish profession contented itself with beefing up the assessment of trainee performance on the training contact. (See the education and training section of the Law Society of Scotland website for further information.)

Determining whether the outcomes have been reached has to be done in the work place. Thus performance in the latter stages of the training contract is crucial. Yet firms have no experience of conducting independent assessment of their trainees. Uncertainty about the performance of a trainee is usually dealt with by ‘signing off’ the trainee with the Law Society and then quietly terminating their employment at the end of the training contract. If the Society is serious about demonstrating competence at the point of qualification, some form of independent review of the training establishment’s evidence will be necessary.

Thirdly, what is to stop the pathways proliferating alarmingly? The likelihood is that the Society will find itself validating a segment of a pathway rather than a full combination of the academic, vocational and training periods. If so, these segments could combine in unforeseeable ways. The paper’s other concern, access by minorities, would hardly be helped by such a bewildering array of possibilities.

Finally, what control will the Law Society exercise over the stages prior to qualification? The English profession already has the tightest regulation of training (and ironically the shortest period of training) in the western world. If a further layer of regulation is added at the point of qualification, then the straitjacket will be complete. The Charybdis to this Scylla is unrestricted innovation, constrained only by meeting outcomes projected several years after the course in issue has ended. Most of all, the Society must come clean about a minimum period of training. Otherwise imagination and innovation will give way to a race for the quickest and cheapest route to qualification.

Last Modified: 4 June 2010