It’s very early days. The SRA, BSB and ILEX’s IPS have announced the review. The LSB have indicated a desire that the review be as fundamental as the Ormerod Review from 1971. I do not know what shape the review is going to take. The College of Law has already come out of the blocks through the Legal Services Institute (the think-tank the College funds) with proposals to do away with the training contract and parks an elegantly written tank on the University law school’s lawn with the suggestion that it should ‘advise’ law schools/law students of the options that students should take under a qualifying law degree. The Chair of the LSB has indicated the desirability of shorter training and more on the job training. There are proposals for aptitude tests at various stages of development from the Bar and the Law Society and also a report from the Law Society suggesting that ethics should be required as part of the degree training of solicitors. Some of these ideas I currently support and all of them merit debate (see blawger extraordinaire CharonQC for his own posts and some links) but I want to stand back slightly, though, with a few key facts and a little horizon scanning.
My first key fact is there are no key facts, or there are rather few of them. By which I mean, there is not much evidence on legal education generally. That there is actually very little evidence, in particular, of what the problems are. And that what evidence there is points in directions different from those being talked up most now. So, for instance, it is said that the LPC and BPTC are not useful qualifications, but the evidence is anecdotal. It is suggested the law degree is not fit for purpose, but the evidence is anecdotal. Reasonable quality evidence of a problem in legal education is rather difficult to find: but so and so says it’s not great, therefore it must be bad.
The same might be said of the training contract and pupillage. These are said to be inadequate preparation for practice, but the evidence is primarily anecdotal (depending perhaps on your view of the Wood report). That said, very few, if any people, fail the training contract and yet it is the final warrant of professional competence. It’s not a tough gig, if only you can get one. The best evidence that there is a problem is work which looks at performance on or rather beyond qualification. That work suggests that a significant body of practitioners do not perform competently, although that research is confined mainly to legal aid and the larger scale work is somewhat older now (work I was involved in on legal aid contracting, specialisation and franchising). Although there is more recent work based on small samples of criminal advocates, the professions are desperate to downplay this. Who’s going to bet against the view that the regulators review will not focus on this problem, but will focus on the degree or the LPC/BPTC? If I am right and they focus on the ‘courses’ will this be on a risk-based/evidence-based approach or will it be on the basis of conjecture and convenience? We shall see. A primary focus on the degree for instance risks wrong-headedness: more candidates now enter the solicitors’ profession through the qualified lawyers transfer test and the GDL conversion course. All three routes need equal scrutiny but it is the final stages and post-qualification specialisation which require the most serious work: it is here that the profession’s regulatory response appears, to me at least, to be poorest.
My second key point is about what we mean by law, and what University law schools are there for. This goes to the heart of what legal education is about. I would be amongst the first to welcome greater competition in relation to legal education and I would dearly love to see a greater, research-based, focus on how law works in practice in the curriculum, but I have to disagree with the notion that legal education does not need to be based, in part, on research-led endeavour. The College of Law seek to dismiss the importance of research in law as part of the legal educational framework. They suggest this view of law:
“In science and engineering, research activity may well be shared with industry, and public bodies such as health organisations.
“Law differs from these disciplines in important ways. New science is often created in universities. However, new law is created by legislatures, at the national, United Kingdom or European level. Academic writing may well influence such legislation, but the role of the academic is at one stage removed. New insights and interpretations in science, engineering and medicine will often result from university research. However, in law, new interpretations are the prerogative of the higher courts. Again, academic writing may influence court decisions, but the common law tradition places less reliance on academic writing than is the case in some civil code jurisdictions. The raw material of many legal transactions will not be available to researchers as, by its nature, it is confidential to contracting parties. All of these limitations play a part in shaping the type of research that is carried out in university law departments.”
This is a bizarre view of law and academic practice. Let me draw on a few examples dear to the Foucaldian paradise that is the ivory tower of modern Universities. I and my colleagues have acted as specialist advisers to Parliament on subjects ranging from legal aid, to mental health and the regulation of gambling. One of my former colleagues drafted seminal legislation reshaping the entirety of Irish Land Law another has drafted Community Care legislation, others have influenced drafting and policy around various law reform projects. Our work is influential on lawyers costs, family justice, personal injury settlements and penal policy. I have advised four national governments on legal aid and many other international and national organisations on access to justice. Another of my colleagues advises various governmental agencies on waste regulation and this has included the UN. We are not alone. I am regularly cited by the Law Society (and others) in legal aid debates. We regularly engage with the judiciary, are cited in their judgments from time to time and train them on current developments. In other words, our research activity is regularly shared with industry, public bodies, government and governmental agencies and it informs our teaching. If the reader will permit me a rare moment of modesty, I should also say we are by no means atypical.
A legitimate question is to what extent does this benefit students? This is one of the many known unknowns of legal education. I believe it does (indeed I have a little data suggesting it does) but I cannot really prove it. I believe that being taught by someone who is working (I hesitate to use the phrase but I can find not other) at the cutting edge is an experience which has significant motivational benefits for student learning but also teaches them important lessons about how law is constructed and fought over and the context which law and lawers operate within. Much of the best research being conducted in law also ensures they understand how contextual law is. A lot of law depends on personalities, politics and money. It is a human system. Understanding the social, economic and political contexts within which law is created and functions is, in my view, an essential part of a modern legal education. Context is everywhere and needs to be better understood. One reasons is that students have to better understand ‘facts’: to my mind legal education focuses far too strongly on the rules that are handed down. Another is that context is vital to understanding the utility of law: in some contexts this means developing a better understanding of philosophical constructs like justice in others this is about starting the development of commercial awareness. Of course commercial firms commonly request this from applicants but I believe it has a broader significance. A key lesson which will be learnt through the Legal Service Act reforms is how justice and business rub up against each other. One of the reasons the professions may be about to hit trouble is they have largely been unprepared for this because they have focused on the internal norms of the legal system rather than the political and economic forces that shape it.
More fundamentally still, legal educators have to have knowledge to teach: they work to advance the discipline – this is one of the reasons why they are of such interest to policy-makers but this role should also be of interest to practice. This leads me onto my final point. Professions depend for their status, in part, on the status of their educational credentials. The University system is going global. The best way for the profession to seek to maintain and develop its status is to make sure its members are educated to the highest necessary standards, by the finest minds, based on the best knowledge about their discipline there is. To assist in this the professions should be investing in research on legal services and law, not sneering at it. Let me give you one example. Many of you will have been taught negotiation. Where does the knowledge behind that training come from? It was not handed down by judges or legislators. A large part of it will have come from the Harvard Negotiation Project. Where is the UK equivalent to this? Given the Bar’s reputation, an obvious opportunity is presented by a UK Advocacy Project, but who here is going to fund that? As student fees increase, reasons for the best English and Welsh students to begin their training in this country will diminish unless law schools compete with the global elite. This requires investment from the professions, a recognition that there some mutuality of interest, and opening up of the professions (and the academy) to serious research on legal professions and legal services. At a time when higher education and legal services are in a state of rapid flux, focusing on dictating foundation or other matters on the law degree suggests a lack of imagination. Legal education is not the handmaiden of the profession but there is a great deal to be gained from a more mature relationship with it.
Postscript: interesting post from Mark Gould on this topic.