Fit for purpose

While still an undergraduate, I once introduced myself to another student as 'a lawyer'. The other student looked bemused. 'Oh,' he said, 'in that case I'm a doctor.' One aspect of the Hunt Review which may emerge as being the most controversial as far as education is concerned (and we applaud Lord Hunt for emphasising that word over the rawly instrumental 'training' in his text) is that it is less about standards and quality, and more about labelling. At what point and under what circumstances might one be entitled to describe his or herself as a 'solicitor', and what might those who acquired that label by a different, arguably more intensive or broader route, want to call themselves by differentiation?

The focus is, as so often, on the process that leads to qualification, although, refreshingly, Lord Hunt has recommendations '“ which again we foresee to be controversial '“ about the 40 or so years of professional practice after qualification, both in terms of CPD and in terms of an objectively determined senior status within the profession. The spotlight on qualification is, however, significant, Lord Hunt suggests because a) it is the 'gateway to the profession'; b) education (including CPD) 'ensures that the public can have confidence' in the competence of the profession and c) 'the educational process also enables individuals to come to an informed view about whether a career in a particular profession is right for them'. So it should, but if the nature of the 'profession' and qualification for it is fractured by ABSs, those entering will need to be further informed about the particular stratifications of qualification and the constraints or otherwise which a particular route may place on later professional activity.

At the other end, Lord Hunt suggests, as a driver towards exceeding the minimum standards prescribed by the regulator, that a senior status of 'fellowship' might be created. In a context where division and variations in accreditation for different types of activity at the junior end are actively in discussion, this is by no means an inexplicable suggestion. In fact, the solicitors' profession is perhaps already unusual in not already having a sequence of post-initial qualification stages: associate, member, fellow and the like. The conventional hierarchy of 'assistant', 'associate' and especially 'partner' may owe more to decisions about the gearing of the firm rather than recognition of competence.

ABSs may have different, more complex and more objectively verifiable and transparent hierarchies within which we have to learn to move, compete, or die. In an attenuated and highly specific form, of course, the door was opened to such a senior status as soon as it became possible for solicitors to become QCs, but what is suggested is more substantial. If such a senior status incorporates recognition of, say, appropriately practice-specific LLMs, MBAs, PhDs and professional doctorates, as well as objectively determined 'expertise' in the workplace over and above time-serving or the accumulation of unspecific 'experience' without any corresponding higher standard of output, it need not be difficult to administer and has, in the wider context in which we now all operate, advantages.

Increased regulatory surveillance and intervention

As to the degree, GDL and LPC, Lord Hunt recommends a greater level of regulatory surveillance and intervention. While Lord Hunt suggests imposing on the degree the same level of 'scrutiny' as is devoted to the GDL, the scrutiny proposed is not simply as to standards but also as to 'how effective, relevant and practical' the offering is. Here there is, we suggest, a conceptual distinction: very few people undertake a GDL, ELD or LPC for fun, without a distinct vocational purpose.

The same cannot be said of the degree. Academics who work in law schools are familiar with the existing need to serve the 'two masters' (Vollans, 2008) of the higher education quality and standards frameworks as well as those of the professional bodies. This parallels the more substantial question that afflicts law degrees in particular in a way that it does not affect degrees in, say, nursing or medicine: not everyone who undertakes a law degree necessarily intends to, or ultimately does, join the solicitors profession or any legal profession at all. Might one then begin to see a parallel structure of degrees in law faculties alongside the QLD so as to provide degrees in law suitable for those who wish specifically to join the Bar, the legal profession of another jurisdiction, or a related legal profession such as that of magistrates' clerk, in-house lawyer, legal advice worker or IP specialist?

That said, where the degree is specifically vocational, Lord Hunt's suggestion that the transition between degree and LPC should be smoother than it necessarily is at present, is to be applauded. Even more so would be a suggestion that the transition between the LPC and what succeeds it, particularly outside the realms of those firms with sufficient resources to commission bespoke LPCs and given the need increasingly to prepare individuals for work in house and in ABSs, demands attention (see Fancourt, 2004).

The point of qualification as it stands is described by Lord Hunt as twofold: that one may not hold oneself out as a solicitor unless qualified to do so (which begs the question as to the level or degree of 'qualification' which is determined to attract the label in the first place) and that such qualification entitles one to engage in reserved business. The retraction in the extent of reserved business in the last three decades, and ultimately in the Legal Services Act 2007, is seen as weakening the latter. Lord Hunt refers at length to suggestions from the College of Law Legal Services Policy Institute that the training contract as it stands should be jettisoned in favour of specific qualifications in each area of served business, undertaken by the individual as and when, or if, he or she proposes to work in that area, but that otherwise 'no period of supervised practice would be required by regulation', the label 'solicitor' being applied on successful completion of the LPC.

Striking contrast

The contrast between the desire in the Hunt Review to increase regulation of the higher education phase but implicitly to decrease it once the individual has entered the workplace, is striking. The point is, in reality, not whether one mandates or not a period of supervised practice (some element of 'supervised practice' is, of course, currently mandatory even after qualification as those under three years PQE are not permitted to practise on their own account without a specific waiver); but what one understands the label 'solicitor' to mean. Someone who has just completed their LPC cannot easily be demonstrated to be as effective in the real world workplace as someone who has worked in it for two, or five years or the ten years conventionally taken as a marker for the acquisition of 'expertise'.

The Bar, has, of course, moved in the opposite direction by postponing the acquisition of the label 'barrister' until some degree of workplace experience has been acquired. This is perhaps not unrelated to the question of creating a senior status: while a junior doctor is still a doctor, the general public does at least understand that he or she is not a 'consultant'. Whereas, at present we know that, even if the profession lacks senior status markers for expertise, that someone with the label 'solicitor' might, and will if the SRA's proposals for work-based learning are implemented following their pilot, have an objectively determined level of competence in the workplace.

If the Solicitors Act is amended to allow the label to be applied at the 'decaffeinated' stage immediately after the LPC, what will we call those who have worked whether in a law firm, in-house or in an ABS and have had the opportunity to demonstrate some level of competence in the workplace? As Lord Hunt suggests, this proposal should be opened for debate and, as we suggest, the experience of related professions both here and in other jurisdictions (particularly Australia, which created a set of competency standards in 2000) examined. Nevertheless, for the public, the debate may be comparatively academic: it is not, or not only, the label which counts, but the actual standards of performance.

Solving the CPD problem

This demonstration of competence or of expertise is critical to the standards debate, which brings us to Lord Hunt's suggestions about CPD. As the SRA has acknowledged in its own 2007 paper 'The Way Ahead', CPD requires attention if it is to be meaningful. Lord Hunt suggests mandating: attendance at 'focused and accredited courses'; refresher compliance training; CPD for non-solicitors working in regulated environments; elements of reaccredidation and revalidated along the lines of the GMC and inclusion at all stages of education, including CPD or work on ethics. All these suggestions, of course, other than those relating to reaccreditations and revalidation which include some element of assessment and more importantly reflection on practice, will not of themselves address the problem which is at the heart of the current CPD system.

Acquisition of the relevant number of points for compliance is not conditional on either having learned anything or having shown, to oneself or to anyone else, any improvement in standard of practice. CPD, as currently formulated, is about compliance and regulation ('inputs' rather than 'outputs': Maddern and Mitchell, 1993), but not about learning. There are definitions of 'expertise' in the academic literature which would deny the label of 'expert' to those who did not embrace a commitment to personal development and this is implicit in the GMC concept of 'revalidation' to which Lord Hunt refers (Bereiter and Scardamalia, 1993).

The fact that many solicitors, particularly those in the early years of practice, embrace CPD, particularly if it is interactive, operates despite, rather than because of, the current system. We all know this, but without some form of revalidation, resistance to what is already a fairly minimal CPD requirement when compared with that of other professions, will be supremely difficult to shift.

Caffeinated or decaffeinated, in ABSs or law firms, this is a real challenge where we have more to do and more at stake than our medical colleagues: the public rarely believes that it, or Tesco, is capable of effective surgery.