Fair access - a fair way to go

A year ago, I was among student campaigners and young lawyers who presented a paper on fair access to the Law Society of Scotland’s Council(1). Our paper argued that the costs and uncertainties of studying for the Diploma in Professional Legal Practice (DPLP) were a significant barrier to aspiring lawyers from less privileged backgrounds. We called on the Society to identify and evaluate options for reform of the route to qualification to remove this financial obstacle.

Council’s response was encouraging. It committed to embedding fair access in strategic planning and decision-making. It tasked the Society’s Education & Training Department to report on the route to qualification from a fair access perspective. The output of this work, the report Fair Access to the Legal Profession, was published on 31 January.

The Society wishes the report to be widely read. But at 107 pages, its accessibility has suffered in its pursuit of comprehensive coverage. It would also have benefited greatly from an executive summary, and a structure of introductions and conclusions to each section of discussion. These would have guided a reader through the issues and helped the author be clearer about the links between evidence, conclusions and proposed actions. As it is, the report’s bulk will deter all but the most dedicated reader, and its insights, and weaknesses, will receive less attention than they deserve.

Fair access and the LLB

The report starts by considering the first step for most aspiring lawyers: a place on an LLB. It makes the point that the profession is an “inheritor of inequality”, as the generally lower attainment of those at schools in more deprived areas leads to unequal socio-economic profiles on degree courses, such as the LLB, with demanding entry standards.

As the report admits, there is little the Society can do about much of this. Most of the issues discussed – student funding, contextualised admissions, the Government’s measure of social diversity – are solely or mainly within control of Government or the universities. This lengthy section does give important context for the profession’s own fair access debate, but I would have preferred to see a shorter treatment. This would have kept the focus of the report more firmly on issues within the Society’s remit.

However, this section does make a good point about the danger of over-reliance on school grades in trainee selection. The Society is also to launch an innovative “Street Law” school outreach programme.

Fair access and the DPLP: evidence

The second, and longest, section of the report looks at the DPLP. In my opinion, the current DPLP structure is still the central issue in the debate – not least because it is the part of the route to qualification over which the Society has most control. And the requirement for aspiring lawyers to invest £10,000 or more, often with no clear prospect of a traineeship, creates a compelling prima facie case that many without well-off families cannot afford to pursue a career in law.

But the report does not assess the extent to which the DPLP is a fair access barrier. This question may determine the whole course of future reform, so it is hard to understate its importance. A full set of statistics on the socio-economic background of DPLP students was not available in time for publication. The report promises these will be published as a supplement when they become available.

Fair access and the DPLP: analysis and discussion

This section then examines a number of suggested reforms of the DPLP. As the report points out, some appear contradictory; others may be counterproductive. So any discussion of them needs careful assessment.

But this robust evaluative approach is missing in some important places. For instance, the report discusses integrating the DPLP into the traineeship. Later in the report, this model is shown to be followed in some other jurisdictions and professions, so it must be viable. Yet, the analysis goes no further than narrating the objections which may be raised by law firms.

The report also does not make comparative evaluations that might set a clearer agenda for further work. Of the options for reform, some are within the Society’s power to deliver; others rely on the universities or the Government. The anticipated criticisms to some are arguably weaker, or based on reluctance to change rather than principle; for others, there seems more weight in the likely objections. None of this is conclusive, but the report could have identified the most promising options for initial investigation. This would have brought a sense of order to the proposals for future work. As it is, the reader is left with the sense that the Society does not yet know where to start in picking through these diverse and often conflicting proposals for reform.

Fair access and traineeships

The following three short sections look at the traineeship job market. There are no statistics to inform any discussion of the fair access impact of the DPLP to traineeship transition, although the reports highlights the fact that the numerical gap between DPLP graduates and traineeships remains significantly higher than eight years ago. This will inevitably affect access: the more the DPLP is a gamble rather than an investment, the more difficult a choice it becomes for those without financial security.

There is also a discussion on trainee salaries. Although a much wider question, this does have fair access implications. It is good to see the report unequivocally reject a return to unpaid traineeships.

Other issues

Section 6 examines sources of funding relied upon among DPLP students. The recent introduction by Government of a limited and means-tested support loan is noted. Some possible funding ideas are suggested, but few appear realistic as the report gives little hope that any requiring the profession to contribute to DPLP students will be received positively.

Sections 7 and 8 survey the routes to qualification in different jurisdictions, and to other professions in Scotland. As suggested above, a lot could be learned from these working examples. But they are presented with little comment, and the reader is left to draw his or her own conclusions.

This leads into a discussion entitled “The war for talent” – an important issue but not really a fair access one. The final section then briefly discusses a number of issues not already covered. One part highlights the importance of internships, and makes a commitment to producing “best practice” guidance for recruitment and payment of interns. This will be an important step to assist those without contacts in the profession or the ability to work unpaid.

This final section also discusses measuring socio-economic diversity throughout the route to qualification. The difficulties encountered by the report in drawing conclusions on the barriers to fair access would seem to underline the value such statistics would bring. Yet, change is dismissed as “it would seem anomalous” when compared to the Society’s current practice. This is unsatisfactory.

There is also no analysis of the Profile of the Profession report, the centrepiece of the Society’s existing diversity research. As highlighted in November’s Journal2, this seems to show a dramatic reversal among the youngest solicitors of the slowly improving social diversity among more recent entrants to the profession. Something appears to have changed in the route to qualification; the increasing cost and risk associated with the DPLP are obvious suspects. But these figures are not included or discussed.

Proposed programme of work

The report concludes with a proposed programme of work. Each of the 21 actions is only briefly described, so it is not easy to understand what some will entail. Quite a few are simply “The Society should consider”. The report does promise a review of the DPLP and traineeship in 2014-15. But there is no indication of which, if any, of the reforms discussed in the report will be within the scope of this review.

In corresponding with the Society while preparing these comments, there does seem to be much more detail behind these actions than the bare words of the report might suggest. I understand there is a project plan with a two-year timeframe. This is reassuring. But it would have been better had the report itself more explicitly laid out the scope, priorities and timescales for further work.

Only a start

The report is wide-ranging and substantial. Much effort has been invested in creating it. In that sense, it is a very welcome indicator of the Society’s desire to address the fair access issue.

Last year’s fair access campaign called for a review to “identify, investigate and evaluate options for reform of the route to qualification”. And the Society’s publicity surrounding the report suggests it is a “wide ranging action plan aimed at making the route to qualification as fair as possible”3.

But, despite all the effort compiling it and the valuable points it makes, the report falls short of living up to these expectations. Instead, it is much more a briefing or discussion paper than a forensic analysis of the issues or a comprehensive blueprint for reform. And, on key questions such as identifying the biggest barriers to fair access or the most viable and effective reforms, the report has not advanced the debate much beyond where it stood this time last year.

I’m aware that this report is not intended to be the last word on the fair access debate. And I’m still hopeful that the Society’s fair access review will lead to meaningful reform of the route to qualification. But, if so, this report can only be a starting point. What follows will need to be much more tightly focused and thoroughly worked through if the Society is to deliver the sort of reform that I believe is necessary.

Tim Haddow is a trainee solicitor and fair access campaigner. @TimHaddow

Implementing a true plan of action

The Society’s Rob Marrs responds that the Fair Access report does contain the potential for radical change Before I get on to a bit more detail on some of the action plan, let’s look at the timeline of events. Due to the fact that the Fair Access report had to be finalised by the end of October so it could be presented to the November Council meeting, there wasn’t an opportunity to explore the important Profile of the Profession report in detail at that stage. The findings from that report will undoubtedly inform our thinking going forward.

Having debated the report at length and then approved our recommendations, Council asked us to scope and cost them. We did so by presenting a detailed project plan, in January, which culminates towards the end of 2015. Once the project plan was approved, we released the Fair Access report so the profession could engage with it and debate the various issues contained within the report, and indeed the issues surrounding fair access more generally. It isn’t the last word on fair access, nor have we ever claimed that. It is, I hope, a useful contribution to the debate and the basis on which the Society has set out a clear plan of action. That will include gathering more data to give us the best possible understanding of fair access issues.

Turning to the action plan, I’d argue it is more radical than some may have originally thought. To take a few examples:

• The work on the alternative route to qualification will look at whether we can rework that into a truly alternative route (rather than merely an alternative to the LLB). This also raises, for the first time in decades, the prospect of apprenticeships into the legal profession.
• Our work with Adopt an Intern will see us trying to stimulate internships for unemployed Diploma graduates. We’ve already met representatives from Adopt an Intern and hope to launch that project soon – we now need legal employers to volunteer.
• Currently, in exceptional circumstances it is possible to undertake a non-PEAT 1 traineeship. We intend to look at whether those exceptional circumstances can and should be widened out without watering down standards. This last point is crucial and will be influenced by the views of the profession, but change here could make a huge difference to fair access.
• At present, the PEAT 2 outcomes can only be met via a two-year training contract. Our work will look at whether these outcomes could be met in other ways. For instance, could someone with an LLB and Diploma work in a legal office (not in a training contract) but, in due course, sit some form of examinations to prove they are of the requisite standard to become a solicitor?
• We are undertaking an independent review of PEAT in 2014 (the first year anyone can have done both PEAT 1 and PEAT 2) and 2015. However, by and large, this work does not prohibit us from making changes to the route to qualification, in terms of fair access, if they are the right changes.

Ultimately, the Society has to balance a number of competing concerns here. Fair access is of fundamental importance to us. At the same time, we have to ensure that the quality of newly qualified solicitors is high, and that we have a strong evidence base for any changes we make. If any members would like to know more about the detail of the project plan, please do get in touch.

Stepping stone on a long road

The Scottish Young Lawyers' Association welcomes the Fair Access to the Legal Profession report, but believes that it is only a start in a process with a long way to go

As many readers will be aware, the Scottish Young Lawyers’ Association (SYLA) has for many years campaigned for improvements to the diversity of entrants to the Scottish legal profession. We therefore welcome the first fruits of the Law Society of Scotland’s increased focus on the issue of fair access.

At a doorstop-worthy 107 pages, the Fair Access to the Legal Profession report is a thorough, well researched and thought-provoking piece of research, which advances the debate beyond the traditional contention on Diploma funding, to look at wider issues concerning secondary school attainment and social mobility, and how these impact on diversity in the legal profession. The report rightly acknowledges that many of the issues affecting diversity in the profession are not of its own making, and the profession is somewhat an “inheritor” of existing inequality in society.

Further work

For all that that is true however, there is much that the legal profession can and should be doing to improve fair access. We tend to view the report, welcome as it is, as merely the very first stepping stone in what will be a long road ahead to achieve fair access. The report is, for us, an initial output in what we hope will now be a permanent focus of the Society. The report, to our minds, should be received as an interim update on progress, rather than offering all the solutions. There remains much work to be done, and many more ideas yet to be considered.

The report acknowledges that it has been hampered somewhat by the lack of complete statistics available for full analysis. For those who attended our recent annual debate in November 2013, which centred on the perception of the profession being only for the privileged, you will recall that the Faculty of Advocates came into much criticism from young lawyers for its failure to compile and maintain statistics on fair access. The Society is arguably in a better position than Faculty on this score, but with all the resources available to the solicitors’ branch of profession given our comparative size and revenue, we tend to feel the Society can and should do better on this, a sentiment endorsed by the report and its commitment to improve this. There is much more work to be done, not only to come up with meaningful proposals to improve fair access, but to actually measure the impact of any of those proposals statistically.

While funding of the Diploma has been, and remains, a key concern of ours, we have always argued that this is but one piece of a larger jigsaw in the fair access debate. The Society seems, through the report, to come to the same conclusion, that access to the LLB is just as much of an issue. The report gives a renewed focus on access to the LLB, and school attainment levels.

PEAT: too soon to change?

With a new recognition that the existing structure of the LLB and Diploma may hinder fair access to the profession, there is however a distinct and disappointing lack of enthusiasm for change to the existing PEAT structure of qualification. At times, the report feels like a defence of the status quo. It is claimed that it is too early in the lifespan of the new system to launch a review; however this is an excuse that has been touted for a number of years now. Anecdotal evidence to which we are privy suggests that the profession has welcomed the new outcomes-based focus for qualification and the new standard measurement of PEAT, but to any outsider, its structure (the most common of which is a four year degree followed by the Diploma) looks unchanged from the 70s.

Regardless of the system’s infancy, and no matter how long it took to come to fruition, if it fundamentally inhibits one of the Society’s key priorities – ensuring fair access – shouldn’t we look again at structural change? If it doesn’t meet our needs – and ensuring a diverse and representative legal profession is, we argue, a need of society – shouldn’t we look again? To be clear, the SYLA doesn’t claim to know statistically whether the structure of PEAT helps or hinders fair access, but in the face of many prima facie convincing arguments that the current structure of LLB and Diploma does the latter, a review does seem merited, no matter the institutional weariness in the Society with looking at the structure once again.

The market for legal services in Scotland has fundamentally changed since the last review of education was carried out. The arrival of what we perceive as an entirely new career path – that of the “legal analyst” – needs to spark thought on what it actually means to train a solicitor and what we use trainees for in our profession. The SYLA is concerned that we need to keep the best talent in the Scottish legal profession – our people are what make the profession the valuable resource to Scotland that it is. A very real fight for the top quality graduates has been waging for some time between Scotland and England, where many young people perceive a fairer and more attractive route to legal qualification lies. With the advent of a new career path on our own shores, we are concerned that the problems with fair access in the current structure to qualify as a solicitor, are only serving to making this an increasingly lost battle.

The report we view as a welcome consolidation of statistic material and the arguments presented in the fair access debate to date. It is an aspirational piece, albeit lacking the bold, radical, solutions-based vision we anticipated – we hope this comes further into the Society’s review on these issues. We are looking forward to working with the Society on its upcoming schools project, together with the upcoming conference on fair access. The report, to us, is a step in the right direction, but many more, bolder and surer-footed, steps are still needed.