Webb, J; Fancourt, A --- "The Law Society's Training Framework Review: On the Straight and Narrow or the Long and Winding Road?" [2005] LegEdDig 22; (2005) 13(4) Legal Education Digest 7

The Law Society’s Training Framework Review: On the Straight and Narrow or the Long and Winding Road?

J Webb & A Fancourt

[2005] LegEdDig 22; (2005) 13(4) Legal Education Digest 7

38 Law Teacher 3, 2004, pp 293–325

The training of both solicitors and barristers is under review. The Law Society began its Training Framework Review (TFR) in 2001, with the intention of developing a new qualification framework for solicitors. The intention of the review has been radical from the outset: to create a competency framework for the education and training of the profession ‘from cradle to grave’. The present intention of the Society seems to be to complete the first stage of this review — governing qualification up to the point of admission as a solicitor — by the end of 2004.

In 2003, in the wake of the Law Society’s TFR, the Bar Council initiated its own review, publishing a Discussion Paper, ‘Training for Practice at the Bar’ in January 2004. Although there are differences in the detail, the Bar’s exercise is proceeding on broadly parallel terms in seeking to establish a competency framework identifying the ‘day one’ competencies that are to be expected of a newly qualified barrister.

The training of solicitors in England and Wales has largely followed the established three-tier model of professional education, involving academic, professional/vocational and continuing stages. The academic stage is generally satisfied by possession of a ‘qualifying law degree’ or by completion of a non-law degree and a conversion course, lasting at least one academic year. As anyone teaching law in the United Kingdom knows, the number of law schools and law students has grown exponentially.

Both the Law Society and the Bar require trainees to undertake a formal training course of one academic year’s duration. The nature of these courses has changed substantially over the last 25 years. The 1990 consultation paper ‘Training Tomorrow’s Solicitors’ sets out a future strategy for the vocational education of solicitors, and in turn led to the start of the new Legal Practice Course (LPC) in 1993.

The LPC is currently delivered to over 7,000 students by 32 providers. The majority of these courses are located in post-1992 university law schools, though there are also a number of pre-1992 university providers and non-university training institutes. The course itself is strongly practice oriented. It is organised around a mix of skills — legal research, writing and drafting, client interviewing and advocacy. The vocational stage can also be said to require a second element of work-based training. Trainee solicitors are required to undertake two years training in a law firm, or other practice setting, prior to qualification.

To understand both why the TFR has come about and why it has taken the form that it has, one needs to look at the complex practice and policy context within which the debate about the Frameworks is taking place. The trend towards a more occupationally diverse and functionally specialised profession is well documented in the literature on the legal profession. There is considerable evidence that legal professions are increasingly segmented, not just by the traditional separation between solicitors and barristers, but more by virtue of specialisation in terms of the client groups and interests they serve. Fragmentation represents a very real challenge for the professional body, not least because it puts into question both its representative and regulatory hegemony over its members. But it also has significant implications for education and training. The Law Society has historically emphasised the generality of vocational training, with the LPC being geared to equipping students with the range of skills necessary to enter any sphere of practice. The LPC has been accused by legal educationalists of failing to take skills and ethics, and even the underlying complexity of law practice and the changing practice environment, sufficiently seriously, and it has been over-prescriptive and mechanistic in its approach to assessment as well.

Publicly, the academics strongly refute claims that the quality of LLBs has declined, pointing to the fact that those who assert such claims can offer no objective evidence to support them, and that the loudest critics, ironically, tend not to recruit from the law schools which have been most active in trying to equip students with the skills and attributes the profession seeks. However, law schools feel under-resourced and often under strain; student numbers have risen exponentially; staff numbers have not kept pace, and the growing research and teaching audit culture adds to administrative burdens and can serve to keep some of the most experienced teachers out of the classroom.

Underlying all this are echoes of the old question: what are law schools actually for? While many academics today, we suggest, are likely to see the debate between law as a liberal and as a vocational education as readily resolvable, or at most as a tension, rather than a paradigmatic opposition, this distinction is still deeply embedded in the structures of English legal education, and in much of the thinking that informs legal education as a practice. The utility of academic legal knowledge is less determined today by reference to its utility for the practice of lawyers. The growing number of LLB students who have no intention of entering the profession also, at least implicitly, supports the autonomy of the degree from professional training.

The present training and recruitment system creates, in various ways, a cultural diversity problem for legal education and the legal profession. The bottom line is quite simply that the system treats some as more equal than others, by continuing especially to benefit those would-be entrants who possess the appropriate cultural capital. Degrees from the elite universities remain the most marketable; and the largest professional recruiters, on the whole, still seem wedded to recruitment practices that privilege graduates of those same elite institutions. While there may be limits on how far the Law Society can shape the recruitment practices of individual firms, we should acknowledge that the Society has increasingly indicated its own commitment to improving policies affecting equality and diversity.

There is a deeper, more conceptual, shift that is shaping debates around higher and professional education. As a kind of shorthand we will describe this shift in terms of a ‘flexibilisation’ of legal education. Flexibilisation, through an emphasis on performativity and outcomes thus can encourage the view that it is the destination that matters, not how you get there. Such flexibilisation raises important questions for both course design and the regulatory environment too. In terms of quality control and regulation, flexibilisation also raises some important questions. Flexibilisation as a pedagogic practice also has both benefits and burdens.

The TFR seems to be characterised by three key principles: first, that a competence-based framework is necessary to deliver the desired objectives of the review; second, that this framework can be constructed around a basic distinction between knowledge, skills and ethics; and third that such a framework can deliver a single set of statements that can, despite the problems of fragmentation, capture the common core of what is required to be a solicitor.

The overall strategy of the TFR of moving to greater flexibility in access to the profession through new pathways, with an emphasis on outcomes rather than content and structure should be welcomed, but with a note of caution. The development of new pathways to qualification in theory could benefit entrants with relevant prior experience, and those from more diverse ethnic and social backgrounds than has previously been the case. The Law Society in its review has considered a number of examples of integrated training. At present, the LPC tends to be regarded as little more than another hoop to jump through prior to qualification, rather than true preparation for practice. While the encouragement of innovative pathways is admirable, there is a danger that they could proliferate, and cause uncertainty and confusion for both intending entrants and firms looking to take on trainees. However as the new and varied pathways develop, there will need to be considered planning of recruitment and careers advice to ensure students, at whatever level, are fully informed of the options available, to maximise access and avoid exacerbating problems of both wastage and social exclusion.

Given the amount of uncertainty that remains regarding the final outcomes of the TFR, we remain wary in offering any firm set of conclusions. The TFR clearly represents a significant development in legal education and training. It contains many good ideas — the broadening of the base beyond knowledge and skills narrowly defined, the potential to integrate academic and work-based learning, the capacity more generally to build in greater innovation, to increase access to and diversity in the profession, to take ethics and values more seriously; these should all be warmly welcomed.