Key Directions in Legal Education

National and International Perspectives

Emma Jones, Fiona Cownie, Emma Jones, Fiona Cownie

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781032175041
• eBook ISBN: 9780429826573
• Topic: Education
• Subtopic: Education General

Key Directions in Legal Education identifies and explores key contemporary and emerging themes that are significant and heavily debated within legal education from both UK and international perspectives. It provides a rich comparative dialogue and insights into the current and future directions of legal education.

The book discusses in detail topics including the pressures on law schools exerted by external stakeholders, the fostering of interdisciplinary approaches and collaboration within legal education and the evolution of discourses around teaching and learning legal skills. It elaborates on the continuing development of clinical legal education as a component of the law degree and the emergence and use of innovative technologies within law teaching. The approach of pairing UK and international authors to obtain comparative insights and analysis on a range of key themes is original and provides both a genuine comparative dialogue and a clear international focus.

This book will be of great interest for researchers, academics and post-graduate students in the field of law and legal pedagogy.

Part 1

Legal education and external stakeholders

In the following two chapters, Unger and Zhou and Palmer reflect on a number of different pressures exerted on law schools and on individual legal academics in both the UK and China by actors who are located outside academia. While the socio-political situations of these jurisdictions are very different, in both of them law schools and legal academics face challenges that require astute political handling if legal education is to retain any significant degree of autonomy.

Chapter 1

Legal education future(s) – the changing relationship between law schools and the legal profession

Andy Unger

Introduction

At first glance, it would appear that since law schools in China are operating in the context of a very different political system from those in England and Wales, they would not have much in common when it came to a consideration of the pressures exerted on legal education by external actors. However, in broad terms, law schools in both jurisdictions are faced with pressures to change the education they deliver in order to satisfy the agendas of political actors outside their immediate environment. As Zhou and Palmer comment in their analysis of Chinese legal education in the following chapter:

[I]t is perhaps better to see China as possessing a ‘political-legal’ culture rather than a legal culture. The continuing traditional influence of strong government, and the dominant position of the Chinese Communist Party in the administration of justice, mean that law and the legal system have strongly political and administrative dimensions. (Zhou and Palmer, this volume)

In England and Wales, the pressures on law schools to deliver outcomes specified by external players, while not exactly the same as those felt by Chinese law schools, are nevertheless numerous.

The changing relationship between law schools in England and Wales and the legal profession

Both higher education and the legal profession are undergoing a shift away from traditional professional self-regulation towards regulation by market forces. The legal profession has seen the loss of traditional monopolies, the introduction of competition and the loss of much of the Legal Aid system (Abel, 1988, 2003, Green and Sandbach, 2016). Higher education has undergone a process of massification with rates of participation rising from around one-fifth to nearly one-half in the last 30 years. The proportion of school leavers going on to some form of higher education is currently 49.8% (Department of Education, 2018). The benefits of that expansion in terms of diversity and social inclusion are obvious, but there have also been significant drawbacks. The increasing number of students going to university has raised the question of who should pay for higher education and the answer in England and Wales has been the students themselves, with university fees rising to full cost at £9,250 and the government introducing a student loan scheme hoping to ensure that all students can afford their education (Student Finance England, 2019). The question of value for money has in turn led to two further developments. The first is an increased emphasis on employability as the object of higher education, rather than the wider liberal education goals articulated by Robbins (1963). The second has been the introduction of business management techniques to ensure quality of provision, so that we are all now familiar with concepts such as outcomes-focused course design and the idea of academic freedom has been tempered by the ‘reasonable management request’.

The result of these changes has been the marketisation of higher education in England and Wales with employers and students encouraged to make informed choices based on key sources of data such as the National Student Survey, the Destination of Leavers of Higher Education Survey and now the new Teaching Excellence Framework (TEF) (Office for Students, 2019) to complement the longstanding Research Excellence Framework (REF). TEF rankings of teaching quality in institutions as gold, silver or bronze are drawn from a range of data, including course completion, the National Student Survey and Destination of Leavers in Higher Education and they may soon impact the level of fees that universities can charge for their courses. These data, compiled into league tables for universities and individual courses, can have measurable, but generally modest, impacts on student recruitment when rankings change (Broecke, 2015). Regardless of the degree of their impact and even if other factors are more significant, league table rankings certainly inform management strategy in many English and Welsh universities (Catcheside, 2012).

The legal profession has also been introduced to competition and external quality controls by the Legal Services Act 2007 (Boon, 2010). In its first year of operation, the Legal Services Board (LSB), established by the Act to oversee the regulation of all legal services by the respective ‘Approved Regulators’ (including the Bar Council, the Chartered Institute of Legal Executives, the Council for Licensed Conveyancers and the Solicitors Regulation Authority), described itself as ‘the independent body responsible for overseeing the regulation of lawyers in England and Wales. Our goal is to reform and modernise the legal services market place by putting the interests of consumers at the heart of the system, reflecting the objectives of the statute that created us, the Legal Services Act 2007’ (Legal Services Board, 2011).

The Solicitors Qualifying Examination

It is in this context that the Solicitors Regulation Authority (SRA) has outlined radical changes to the way in which solicitors will qualify from September 2021, proposing the introduction of centrally set and assessed examinations of legal knowledge and procedure, ethics and legal skills, to be known as the Solicitors Qualifying Examination (SQE). The framework for the proposal has already been approved (LSB, 2018) and, although final approval is still outstanding, the general expectation is that SQE will go ahead from autumn 2021. Few UK law schools can afford to ignore these changes.

The Bar Standards Board is introducing similar changes for barristers (Bar Standards Board, 2019), but they are less radical and retain the existing stages of qualification envisaged by the Ormrod Report; academic, professional (comprising institutional training and ‘in-training’) and continuing education or training (Ormrod, 1971, para. 185). The Ormrod requirement for a graduate profession led to the establishment of what has become known as the qualifying law degree as the first stage of qualification for barristers or solicitors. Law schools are free to offer any law syllabus they choose, taught and assessed as they see fit, provided the degree has been validated as required within their university and the wider HE sector. But for the course to be recognised for the purposes of professional qualification it must meet the professions’ stated requirements for a qualifying law degree, which were until recently articulated in a joint statement (Joint Academic Stage Board, 2012). At present, aspiring barristers and solicitors go on to take the bar professional training course or the legal practice course to be taught and assessed in the legal knowledge, procedure, ethics and skills appropriate to their chosen branch of the profession. Finally, candidates undertake supervised work experience as pupil barristers or trainee solicitors to complete their initial professional training. This chapter will focus on the changes to the way in which solicitors will qualify in the future (SRA, 2017).

The SRA proposals abandon the requirements for a qualifying law degree, the legal practice course and a training contract. These are replaced by the requirement for a degree (or equivalent), not necessarily in law, and passing two centrally set assessments – the Solicitors Qualifying Examination Stages 1 and 2. Intending solicitors must also undertake qualifying work experience supervised by a solicitor, although the solicitor’s role is limited to ensuring they have an opportunity to learn from experience. Finally, candidates must pass character and suitability requirements. The proposed SQE Stage 1 assesses ‘functioning legal knowledge’ in three multiple choice question papers: 1) business, dispute resolution, contract, tort, 2) property, wills, solicitors’ accounts and 3) public law, legal system, regulation, criminal. There is also a legal skills assessment on legal research and writing (SRA, 2019). All assessments are centrally set and assessed. SQE 2 comprises five skills assessments that must be taken and passed in two practice contexts of the candidate’s choice, making a total of ten assessments. The skills are: client interviewing, advocacy/persuasive oral communication, case and matter analysis, legal research and written advice and legal drafting. The practice contexts are: criminal practice, dispute resolution, property, wills and the administration of estates and commercial and corporate practice. SQE 2 assessments are likely to last one hour and involve the use of simulated clients. Both SQE 1 and SQE 2 assessments will include unflagged ethical questions. The SRA will provide candidates with their scores for each of the modules, but will not provide grades for the examinations beyond ‘pass’ or ‘fail’ (SRAuthority, 2019). The SRA expects that many candidates will take SQE Stage 1 before their work-based experience and SQE Stage 2 at the end of their work experience. However, some city law firms have already indicated their intention to get their trainees to pass SQE 1 and SQE 2 as early as possible at the start of their work-based experience so that as much of their training as possible can focus on the specialisms they will practise (Law Society Gazette, 2018a).

Concerns about the Solicitors Qualifying Examination

One key difference between the proposals and the current arrangements is that a law degree or equivalent is no longer required for qualification. Another is that in future neither the law schools nor the profession are to be involved in the certification of competence to practise (SRA, 2017). At present, the law schools certify sufficiency of legal knowledge (by awarding a qualifying law degree or a graduate diploma in legal studies) and sufficiency of procedural knowledge and professional skills (bar vocational course, legal practice course) and professional practitioners certify fitness to practise following supervised ‘in-training’ as a pupil barrister or trainee solicitor. During the consultation process, the SRA expressed concern about differential pass rates on LPC courses and assumed that the reason must be differential assessment standards (as opposed to entry standards or teaching standards) (SRA, 2016a). It did not expressly say but might be assumed to have been equally worried about incompetent solicitors being able to sign off incompetent trainees to become incompetent solicitors of the future. In any event, it has taken control of the assessment of day one competence itself and hired a private training company, Kaplan, to administer the SQE for it (Law Society Gazette, 2018b). This is a significant reduction of professional self-regulation and does not appear to carry the profession’s support (Hall, 2017). No one doubts the right and responsibility of the SRA to act in the public interest to ensure that newly qualified solicitors demonstrate high and consistent standards of competence, but many of the stakeholders consulted by the SRA have expressed considerable concern as to whether the SQE is a necessary reform or fit for purpose. Concerns include loss of status as a graduate profession (particularly with regard to competitor law firms internationally), a refusal to benchmark the QAA against the national qualifications framework and whether the SQE is, in effect, a lowering of entry standards. Another concern is the inability for candidates to qualify in specialist areas ranging from employment law and family law to intellectual property and mergers and acquisitions (SRA, 2016b). Despite the project being entitled ‘Training for Tomorrow’, the idea of a general practitioner of law is anomalous, since modern solicitors are all specialists to a greater or lesser extent and likely to be considered negligent if they were not (Legal Services Consumer Panel, 2010, para. 4.13). Finally, there are a number of concerns that the proposals will have a negative impact on equality of entry into the profession. It is not clear that the proposals will be any cheaper and the structure and nature of the assessments may have a negative impact on diversity by favouring candidates with aptitude for and experience of the assessment methods relied on and, particularly, those that can afford additional tuition and revision support (City of London Law Society, 2018a).

A recent special edition of the journal, Law Teacher (2018, Vol. 4), entitled ‘From LETR to SQE: reforming legal education and training in England and Wales’, provides a detailed review of the SQE and identifies many of the concerns that the law schools have. Mason and Guth in their editorial ‘Re-claiming our discipline’ condemn the SRA reforms as inappropriate: ‘In our view not only are they significantly flawed in terms of their regulatory objective and pedagogy but they also do significant violence to law as an academic discipline’ (Mason and Guth, 2018). Mason warns that the structure of SQE 1 reduces law and the truth of legal propositions to the ability of a candidate to predict the application of legal thought by others. He called this ‘bleak legal realism’ (Mason, 2018). Guth and Dutton warn that SQE-focused degrees will be dull, lacking options and theory, a poor preparation for legal practice and have the potential to make the inequalities inherent in the legal education system worse (Guth and Dutton, 2018). Morrison warns that multiple choice assessments may stifle creativity in learning and assessment (Morrison, 2018). Hall warns that MCQ assessments have the potential to ‘trivialise content and threaten validity’ (Hall, 2018). Bradney warns that any law school claiming that its LLB offers advantages in passing the SQE may have to justify its claim to the Advertising Standards Authority and points to two recent complaints against the University of Law as an illustration (Bradney, 2018).

Even the authors of the Legal Education and Training Review (which preceded the SQE proposals) doubt whether the SQE can deliver its intended benefits:

Critics of competence-based approaches have long raised concerns about the ability of competence frameworks to capture the richness of high level professional learning, and highlighted risks of both under- and over-inclusiveness. All of these problems may flow from the current design of the SQE. First, the breadth of the knowledge component (particularly in the SQE1) continues to lock training into a model of preparation for general practice that no longer exists. Combined with breadth assessment through primarily multiple choice questions, and we have a model that can be said to ensure baseline competence in only the most rudimentary sense. Secondly, while many of the core professional skills (research, oral and written communication, advocacy) are constants, newer capabilities are becoming critical. The Report highlighted commercial and social awareness (which is, at least in the commercial context, captured by the new outcomes), but capacities such as a proper understanding of legal tech, project management, and ‘design-thinking’ are all examples of ‘new’ areas of competence currently being emphasised in practice … Thirdly, there is little to suggest that the SRA has done anything to address, particularly through its assessment design, the impoverished focus on ethics and professionalism, and particularly the need for a broader education in p...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of contributors
• Acknowledgements
• Introduction
• PART 1: Legal education and external stakeholders
• PART 2: Legal education, interdisciplinary approaches and collaboration
• PART 3: Legal education and technology
• PART 4: Clinical legal education
• PART 5: Legal education and well-being
• PART 6: Legal education and skills
• Conclusion: What are university law schools for?
• Index