Background
Advice
| Mr Alan Street (Acting Chair) | Mr John Hannam | Mr Simon Sapper |
| Mr Jonathan Acton Davis QC | Ms Karen Mackay | Ms Peta Sweet |
| Professor John Bell QC (Hon) | Professor Richard Moorhead | Mr John Young CBE |
| Professor Hugh Brayne | Mr John Randall QC | |
| Mr Jonathan Goldsmith | Mr John P Randall |
Principles
The legal profession: entry, retention and competition
Terms of reference
In referral No. 2/2004 of May 2004 the Secretary of State invited the Legal Services Consultative Panel to advise on the following questions:
The Department for Constitutional Affairs recognised that this is a request for advice that differs substantially from those usually addressed to the Panel, which are concerned with specific changes to professional rules governing qualification and aspects of professional conduct. Accordingly, the Panel was invited to feel free to add to, or amend the questions posed, in order to help meet the Department's wider objective of encouraging a more diverse and competitive legal profession, whilst retaining the high standards expected of lawyers. The Department wished to draw upon the experience and knowledge of the Panel to:
The Panel welcomes the opportunity presented by the reference to highlight some important issues concerning diversity within the legal professions. Ensuring that diversity is secured in entry to the professions, and is promoted in career progression, is essential in enabling the professions to be representative of the society they serve. Members of the judiciary are drawn from the ranks of the legal professions, thus diverse legal professions are a vital component of any strategy to secure a more diverse judiciary.
There is much to celebrate in the achievements of the professions in promoting diversity, but much still remains to be done. Specifically, more data is required on progression within legal careers, so that any barriers may be identified and overcome. Firms, chambers and others must address what may still need to be done to achieve the reality of being an equal opportunities employer. More generally, there remains evidence that the most significant barriers to a legal career lie in the early stages of education. Socio-economic disadvantage can lead to under-achievement in school, and educational achievement prior to entry to higher education remains the most significant predictor of success in the process of qualifying as a lawyer.
This report is concerned with the barriers to entry and progression that may be faced by those who in the referral are described as coming from "non-traditional" backgrounds. Most of the data that is available relates to gender and ethnicity and, as such, much of this report focuses on those factors. However, the Panel is conscious that discrimination can arise on grounds of disability, age, or socio-economic background. Although these factors are not addressed in this report, it should not be assumed that they are not important; rather it is an indication that consideration should be given to the collection of data relating to them, to facilitate future consideration of any barriers to which they may give rise.
Many of the recommendations of the Panel concern future monitoring and research. It would be sensible for the responsibility for this to fall to the new Legal Services Board, when it is established. It will be important that the Board is resourced adequately to undertake those tasks.
Intake to the legal professions is broadly reflective of the ethnic and gender composition of the population as a whole and, in this respect, performance is significantly better than is the case in a number of other professional areas. What is less clear is whether the position within the professions is as positive. The picture with respect to progression is particularly important, and there is a need to monitor diversity to ensure that there is fair and equitable access to career opportunities across the professions, and to advancement to the senior positions within the professions.
The main barriers to entry appear to be concerned with prior educational achievement. There is a higher rate of failure amongst black and minority ethnic candidates on the Legal Practice Course, but research has shown that when all other factors are taken into account, ethnicity is not a significant predictor of success or failure. Prior educational achievement is the main predictor of success, and this does vary with ethnicity. The barriers thus lie at an earlier stage of education, prior to entry to higher education.
Given that there is a surplus of academically well-qualified applicants available to enter the professions of solicitor and barrister, closer attention by students and educators to the characteristics that are valued by employers in these professions may enhance the chances of success of a student. These include personal maturity and inter-personal skills.
The cost of qualification may emerge as a barrier. The impact of recent changes in student financial support is not yet clear. Nevertheless, routes to qualification that enable work and study to be combined, and which give appropriate credit for relevant learning outcomes achieved through previous work based learning may enhance the opportunities for a wider cross-section of the community to enter the legal professions, and as such should be encouraged.
These numbers are determined primarily by market conditions, with employing organisations taking on numbers that are consistent with their estimates of future work.
The Panel has not sought to duplicate work already carried out for the Clementi Report. In broad terms, the market conditions most likely to maintain opportunities are those in which the government continues to manage the economy for stability and growth, and continues to promote England and Wales as the jurisdiction of choice for the resolution of commercial disputes between parties in different jurisdictions.
It would be wrong to view the number of undergraduate law places as something to be held in an artificial balance with opportunities in the traditional legal professions. Law is an appropriate preparation for a wide range of careers, and students should be encouraged to think widely about the opportunities to which the academic study of law can lead.
There is a need for ongoing monitoring of diversity within legal employment. Firms should publish, on their websites, diversity information. Such publication could be regarded as a quality standard to which government, as a purchaser of legal services, could have regard.
The Legal Services Board should, from the outset, be resourced to conduct or commission research into areas such as this. In particular, it should be tasked with carrying out longitudinal cohort studies of progression from higher education into and within legal professional practice, to enable barriers to progress to be identified, and remedial action taken.
An important issue for any profession is that of the extent to which its composition, in terms of ethnicity and gender, reflects that of the community it seeks to serve.
It is particularly important that the legal professions should command the respect of all sections of the society they serve. Respect for the rule of law is a cornerstone of a democratic society. Any sense, by a group within society, that its members are precluded from aspiring to careers in the law is likely to undermine respect for the legal system and to increase a sense of social exclusion. In some fields of law, notably equal opportunities, immigration and asylum, it is particularly appropriate that the choice of qualified lawyers should include some from backgrounds with which clients are likely to identify. In fields such as family law, a choice of lawyer that includes both women lawyers, and lawyers with personal experience of different cultural traditions, may make it easier for some clients to secure the services they need.
In the commercial field, the international nature of trade, and the growth of businesses owned by members of the black and minority ethnic communities, means that clients will, increasingly, expect their professional advisers to reflect the diversity that characterises their own enterprises.
The gender composition of the population is, of course, approximately 50:50. The ethnic composition is more complex. Of the population as a whole, the black and minority ethnic (hereafter BME) proportion is just under 8%. As a proportion of the working population, the BME proportion is just over 9%. These proportions are likely to grow, as the BME proportion of the school population is 12.3%.
Against these measures, the legal professions perform relatively well, with recruitment trends in particular suggesting that their ethnic composition is coming to reflect that of society as a whole. However, the position will require monitoring, to ensure that good progress at the point of entry is maintained, and is matched by equitable career progression. The need for continuing monitoring, and for action in response to it where necessary, is illustrated by the figures in the latest annual report from the General Council of the Bar, which reports a fall in the number of pupils at the Bar and, within this, a decline in the proportion of BME pupils from 20% of the total in 2002 and 2003, to 16% in 2004. [Endnote 1]
Some 30% of all barristers are women. In the self-employed bar the proportion is 29%, in the employed bar it rises to 44%. The proportion of women is likely to increase, with 48% of those called to the Bar in 2003/04 being female.
40% of all practising solicitors are women. For the last ten years a majority of those admitted as solicitors have been women, with women making up 57% of those admitted in 2003/04. However, of those solicitors with 10 - 19 years experience in private practice, 78.7% of men were partners or sole principals, compared with only 52.1% of women. [Endnote 2]
9% of barristers come from BME backgrounds, as do 7.9% of solicitors. 17% of new admissions to the roll of solicitors, and 18% of trainee solicitors are from BME backgrounds. The BME proportion of the professions is thus likely to rise over time.
To enable comparisons to be made with the position in other professions, the Department of Constitutional Affairs (DCA) assembled data on other professions. The full information, and notes of sources used to assemble it, is available from the Department.
Participation of women is low. Only 3.2% of Chartered Engineers, 1.0% of Incorporated Engineers and 1.2% of Engineering Technicians are women. Just under 3% of respondents to surveys of registered engineers declare a BME background.
Women make up 54% of the profession, but they hold only 40% of the head teacher and deputy head teacher posts. 2.4% of the profession come from BME backgrounds (although this is considerably higher in London, where 7.4% of teachers are from BME backgrounds). Non-completion rates in training are significantly higher for BME trainees (23.8%) than for white trainees (10.3%).
45% of the profession, and 73% of students, are women. Figures on ethnicity are available only at the point of application to university, at which point 7% of applicants are from BME backgrounds.
The profession has 14% women in practice, but 38% of students embarking on recognised architecture degrees in 2003/4 were female. RIBA feels the profession does not attract sufficient people from BME backgrounds, but no data are available.
Women account for 18% of all officers, and 12.7% of Chief Constables. Recruitment and promotion arrangements have been reviewed with a view to ensuring that they do not present unwarranted barriers to women.
The overall proportion of BME officers is 2.6%. One Chief Constable (of 43) is from a BME background. Approximately one third of all BME officers are in the Metropolitan Police. The proportion of BME officers is 4.2% in the Metropolitan Police, and 5.1% in the West Midlands.
Of British candidates admitted as chartered accountants in 2003/4, 13% were of BME origin.
In comparison with many other occupations, the legal professions have a relatively good record with respect to the entry of women and ethnic minorities. Credit for this must go to the professional bodies, who have fostered interest groups to provide support to black and women lawyers. Practical support has been provided through initiatives such as the Law Society's Diversity Access Scheme and the promotion by the General Council of the Bar of diversity training. Diversity issues are an important factor in the Law Society's current Training Framework Review. Public sector employers have also played a valuable role, through initiatives such as the Law Scholarship Schemes offered by the Crown Prosecution Service to their own staff, and by the Legal Services Commission to trainees in legal aid practices. In the CPS scheme 30% of those studying are from BME backgrounds, and nearly three-quarters are women.
It is against this background that the questions posed by the Secretary of State must be considered. The current performance of the professions should not be a cause for complacency. However, it does mean that the questions need to be focused on specific aspects of performance. Two in particular are of concern to the Panel. The first is that of relative performance within the qualification process. The second is that of progression beyond the point of initial qualification. In both of these areas there are questions to be asked.
Within the progression area there is a further issue of "segmentation", that is the suggestion that it is harder for students from BME and working class backgrounds to gain entry to the larger, elite firms of solicitors, but less difficult for them to secure entry to smaller firms. The issue was identified through the Law Society's cohort studies in 1990s [Endnote 3], but the absence of current data has prevented the Panel pursuing the issue further in this report.
The position with respect to diversity within the legal profession is complex. There have been many studies on aspects of diversity, but it is not easy to link these so as to present a comprehensive picture of entry to and progression within the various branches of the legal profession.
Reasonably full data is available on gender and ethnicity of undergraduate students, of persons registered as trainees with the professional bodies, and of new entrants to the professions. However, there is very little to link these data sets in a way that allows barriers to progression to be identified. The only comprehensive study was that undertaken by Michael Shiner and others [Endnote 4] for the Law Society, of a cohort of students graduating in 1993, whose progress was followed for a number of years in the 1990s.
This cohort study has been the basis of much analysis and comment, and it is a rich source of data. It provides a benchmark against which subsequent changes can be measured. However, it followed a single cohort only, and it is now a decade old. There would be significant value in similar cohort studies being undertaken in future, and the Panel makes a recommendation to this effect below.
It appeared to the Panel that there had been a number of significant changes since the cohort study was undertaken. These include an increase in the number of places on the Legal Practice Course (LPC); an escalation in levels of student debt, following changes in student support arrangements; and a hardening of the legal aid market. A study by the Legal Services Research Centre suggests that BME firms may face particular challenges in competing in the legal aid market. [Endnote 5]
In the light of the limitations of the historic data, the Panel used its Legal Education Conference on 23rd November 2004 to debate the issues raised by the reference, and to gather views on them from training providers, professional bodies and members of the profession. A discussion paper prepared for the conference, and the minutes of it, are available from the DCA. This advice draws on the outcomes from that conference.
Given the value of the Law Society cohort study referred to above, the Panel recommends that similar longitudinal cohort studies be undertaken in future. Cohort studies by individual professional bodies, or by individual universities, would provide an incomplete picture. As discussed below, there is now a variety of routes to qualification as a lawyer, and a wider range of occupations in which legal knowledge is required. A cohort study that gave a complete picture would be best commissioned by a body able to take an oversight of legal services as a whole. The obvious body to undertake such a task would be the Legal Services Board, recommended in the Clementi report [Endnote 6], which the Government now proposes to establish.
The terms of reference ask that the Panel should "determine if the number of those studying law at school/university with the intention of pursuing a career in law, and the numbers of those obtaining training contracts/pupillages is fairly balanced".
Three issues arise from this.
First, the study of law has always been relevant to careers other than those in the main UK legal professions. Some students, particularly those from overseas, may be studying with a view to practising in other jurisdictions. Some students will regard the study of law as a useful preparation for careers in business or public administration, either in specific roles such as company secretary, or more generally.
Second, there is a growth in the number and range of careers for which the study of law is an appropriate preparation. The advice sector is now very large, with voluntary organisations employing increasing numbers of both paid and volunteer advisers. The decision of the Legal Services Commission, with the support of a range of advice bodies [Endnote 7], to develop occupational standards for advice is an indication of the need for performance benchmarks and qualified personnel in this field. Regulatory and compliance functions are taking on increasing importance. The growth of compliance requirements in areas such as financial services and anti-money laundering is creating new opportunities in which knowledge of law is an advantage. The trading standards service has always employed significant numbers of people with law degrees. Over one third of new entrants to the police service are now graduates, many of these having studied law.
Third, student motivation to study law may not always be based on a desire to obtain a professional legal qualification. This possibility should not be overstated, as evidence collected in 1998 suggests a fairly high level of aspiration to enter the legal professions (for example, about 90% of final year undergraduates at the universities of Leeds and Sheffield wished to do so) [Endnote 8]. However, the desire to pursue a professional career in law may alter during the course of undergraduate study. Some students may decide that, whilst the subject has an intrinsic interest worthy of study, it is not, after all, the field in which they wish to make their career. Conversely, other students, who have not enrolled on law degrees, do decide that law is the career for them, as evidenced by the popularity of CPE/GDL courses. Indeed, it is clear that many recruiters to the barristers' and solicitors' professions rate such students highly, even in preference to law graduates.[Endnote 9]. And mature students (an increasing proportion of the whole) may have a very clear view of the career they wish to follow. But overall, it would be wrong to disregard the fact that the study of law provides as good a basis as any other discipline for the development of the general intellectual skills that higher education seeks to foster.
Whatever the first career preferences of students may be, the fact remains that undergraduate law teaching supports a wide range of occupations for which knowledge of law is either essential or desirable. It would be wrong to view the number of places on undergraduate law programmes as something that must be held in an artificial balance with opportunities in the traditional legal professions alone, and the Panel so recommends. The undergraduate study of law should be presented to potential students as providing access to all of these opportunities, and not only to the traditional professions; as well as being a vehicle for the development of generic graduate skills that are relevant to a wide range of employments.
Given the lead time of at least five years between advertising the availability of a place on a law degree, and entry into a training contract or pupillage, any accurate matching of the two would be extremely difficult.
Nevertheless, student expectations need to be managed. There needs to be an awareness on the part of students of all of the potential destinations to which a law degree might lead. [Endnote 10]
There needs also to be an awareness, on the part of all of those concerned with legal services, of the different routes through which legal knowledge may be acquired. These are discussed below, in relation to routes to qualification.
Just as law graduates now enter fields of employment for which graduate qualifications are not mandatory, so may individuals progress through those fields towards law degrees and, possibly, eventual professional qualifications.
In some cases work based learning may result in formal qualifications. This may become the case with persons in the advice sector, once vocational qualifications are available. These qualifications are likely to require some knowledge of substantive law. Some police training now leads to academic credit (for example, initial training for Kent Police is provided by Canterbury Christ Church College, and can lead to a foundation degree). A police officer will be assessed formally for knowledge of criminal law, notably in the process leading to promotion to sergeant.
The CPS Scholarship Scheme is aimed at clerical and executive staff, amongst whom there is a high proportion of women and ethnic minority members. This scheme can have a variety of outcomes, up to and including acquisition of a full professional qualification.
These developments have the potential to open up new, work-based routes to qualification that may be more accessible and affordable than traditional routes to qualification as a lawyer, for many in the target groups with which the reference is concerned.
Volunteers, in particular, are often drawn from the communities that advice agencies serve, and many enter the field without traditional educational qualifications. This represents an important potential source of non-traditional recruits to the sector as a whole. Gaining vocational qualifications through the volunteer route is not open to all; for example a person in receipt of Jobseekers Allowance may not be able to remain as a volunteer for long enough to be trained fully and therefore potentially to become available to move towards higher levels of skill.
A more substantial concern is that qualifications of this nature give no credit towards the main professional qualifications, unless they are used first to gain credit towards a law degree. However, this may change, as the legal professional bodies consider more outcomes based approaches to the qualification process. There are two drivers to this.
The first is liberalisation and harmonisation of professional services in Europe that may lead to a greater emphasis on outcome based qualification. Of particular interest is the Morgenbesser case [Endnote 11], in which the European Court of Justice held, in 2003, that a person holding qualifications in law from one member state, but falling short of the full professional qualification, was entitled to have these taken into account in any determination of the qualification requirements to be satisfied for admission in another member state. The decision applies only to persons seeking to transfer from one jurisdiction to another during the process of qualification. It does not affect persons qualifying through study in a single country. Nevertheless, it may engender some reconsideration of the way in which competence to practice as a lawyer is assessed, not least because it would be ironic if credit could be given to prior learning gained elsewhere in Europe, but not to similar learning undertaken in the UK.
At present, qualifications are defined by a combination of competences that must be achieved (the outcomes) and recognised courses of study and work experience that must be followed (the process). The Morgenbesser judgment places an emphasis on outcomes and opens the possibility that several different processes, or combinations of process, from different member states, may be used to achieve those outcomes. To comply with Morgenbesser, the professional bodies may need to define their qualifications more on the basis of outcomes, and to drop, at least for candidates from outside the UK, any absolute requirement to follow a single specified process.
The second driver towards a more outcomes based approach is a mix of the growing costs of higher education, changes in the patterns of working life, and the need to ensure compliance with equality legislation. These factors have led the Law Society to consult on an approach to qualification [Endnote 12] that will set outcome standards, but will be less prescriptive about the way in which individuals learn, and teachers teach. If this approach enables credit to be given for work-based learning, which may be undertaken in areas of employment in which members of the black and minority ethnic communities are strongly represented, this could serve to increase the diversity of the profession.
Higher education in law is already very diverse. About 65% of undergraduates are women and about 25% come from ethnic minorities or are of mixed race. [Endnote 13] Law is traditionally an aspirational profession, meaning a profession that is seen as a means of enabling social mobility. An examination of the different ethnic groups among university applicants, shows that members of many ethnic minorities apply at a much higher rate than do white students [Endnote 14]. They also succeed in gaining places at a higher rate.
This is not in itself a complete picture. A number of issues have been raised by earlier research and have not been resolved by currently available research. In particular, there are questions about the distribution of ethnic minority students across the higher education sector. Although students from ethnic minorities do obtain places to read law in significant numbers, research in the mid-1990s suggested that they were more likely to find places in 'new universities' [Endnote 15]. Sometimes, this reflects a conscious choice to remain close to home for economic, family or religious reasons. But in many cases, this did not seem to be the case. Evidence suggests that there are some differences in the ethnic mix between law schools in terms of A-level applicants. However, the HESA data on ethnicity does not always distinguish between ethnic groups recruited from within the UK and those from outside. Recruiters seem to place an importance on the institution from which a student obtains their degree. As long as this remains the case, it will be these institutions that provide the majority of opportunities for progression into the legal professions of barrister and solicitor, and thence to the judiciary. It will be important for law schools to maintain data on diversity to enable the position to be monitored, and to assess the impact of diversity within particular law schools on the diversity of the overall intake into the legal professions.
The progress of diversity also depends on attainment at school. It is clear from UCAS statistics that there are very different proportions of students in the different ethnic groups who achieve the higher grades at A-level on which law schools base their offers. Since law schools typically use standard A-level offers to determine those who are admitted, then differences in levels of achievement between ethnic groups is likely to lead to different rates of success in entering law schools. There is also evidence from the 1990s that A-level performance is a significant criterion in the preliminary sifting of applications for traineeships. Some online application systems for traineeships in firms will not accept applicants without the requisite number of UCAS points. Clearly any disadvantages resulting from schooling have persistent impacts on the later recruitment of ethnic minority students into the law. Further progress in increasing diversity will need to take account of this factor and identify strategies for raising attainment and motivation among certain ethnic groups, such as black African-Caribbean males. [Endnote 16] Law is not unique in this regard, but it could play an important part in general efforts to raise attainment. On the whole, it is inappropriate to look at ethnic minorities as a single group, but it is necessary to examine the position of each group in terms of its own, very different profile of achievement.
The number of first class honours degrees obtained by women reflects the proportion of women in the student population as a whole. Although some subjects do have problems in this regard, law is not one of them and longitudinal comparative studies, such as those at the University of Cambridge, have not identified any significant issues. [Endnote 17] The same studies did not identify particular problems among students from different ethnic minorities. However, further information about the attainment of ethnic minority students in Law Schools would be valuable.
The most recent study of BME participation at the vocational stage of training, is the report "Equality, Diversity and the Legal Practice Course" published by the Law Society in 2004 [Endnote 18]. This report is of a project that aimed to identify the various factors which affect performance on the LPC, and to assess the importance of these factors for minority ethnic group students.
The findings of this study confirm earlier research. Previous educational achievement is a very strong determinant of examination success on the LPC. Whether or not a training contract had been secured is also significant, but this may also be determined, in part, by previous educational achievement, given that many firms use "A" level results to sift applicants (as offers may be made before degree results are known). Whether or not students had a relative who was a lawyer is also a significant factor.
When other factors were taken into account, ethnicity was not found to be a significant predictor of success or failure on the LPC. However, prior educational achievement, which is the main predictor of success, does vary with ethnicity, as other research studies have demonstrated. On the indicators of likely success linked to prior education achievement, minority ethnic groups fared less well than white students:
Prior educational performance is probably the major factor affecting the relative success of different ethnic groups in progressing through the qualification process. It is likely that this is dependant as much on social class as ethnicity. Recent research by the Higher Education Funding Council for England [Endnote 20] has demonstrated that social class is a dominant factor in determining the chances of university entry. In the poorest 20% of wards (often dominated by council estates) only 10% progress to higher education, compared to over 50% in the wealthiest 20% of wards.
The emergence of a black and minority ethnic middle class is thus likely to have an impact, in the longer term, on prior educational performance amongst BME students. But this will leave the continuing problem of under-performance based on social class, a problem that was first identified by Jackson and Marsden in "Education and the Working Class" [Endnote 21] (a study based on a cohort of Huddersfield children over 50 years ago), and a problem which continues to this day. Recent research by the Sutton Trust [Endnote 22] indicates that social mobility in the United Kingdom remains below that of other advanced democracies.
The cost of higher education and attitudes to debt will need to be considered, particularly as the new regime of student finance is introduced from 2006.
High levels of debt are now common to many students of all disciplines. The intention of the loan and fee arrangements made by Government, for higher education generally, are intended to provide assistance to those most in need, and to relate repayment of loans to subsequent earnings. Whether these arrangements are adequate, effective and non-discriminatory is beyond the scope of this paper, not least because they apply to all disciplines and not to law alone. Nevertheless, not all social groups treat debt as acceptable, and so the relative impact of changes on different ethnic groups should be monitored.
The main potential financial barrier lies in the cost of the vocational stage of training, the LPC/BVC. There has been a total withdrawal of public funding from these programmes. They were eligible for local authority discretionary awards, when such awards existed. In the late 1980s most of the income of the College of Law took the form of discretionary payments of fees by local authorities, demonstrating that most students had some or all of their costs met from public funds. Now, there is no direct public support, and students do not have access to the loan schemes that are available for undergraduate programmes. The courses are charged to students at full cost, as there is no subsidy from the Higher Education Funding Councils, and there is no provision for fees to be waived or deferred, as the courses are outside the loan and fee arrangements that apply to undergraduate programmes. The fees for these courses are comparable to those charged by universities to full cost (e.g. overseas) students for masters courses.
There are different practices in different occupational fields relating to meeting the costs of professional training. At one extreme, the costs will be met entirely by, or on behalf of, the employer, as is the case with teaching. This will also be the case in occupations where training takes place after recruitment (e.g. trading standards, policing). At the other extreme, the costs will be met entirely by the student (with the possibility of some scholarship assistance), despite there being no certainty of subsequent employment. This is the case, for example, for those training as professional, classical musicians.
Law lies between these extremes. The costs are divided between the cost of the vocational course (LPC/BVC) and the cost of the work based training, in a training contract or pupillage. If a student does not have a training contract or pupillage arranged, the cost of the vocational course is a speculative investment.
The major firms of solicitors will, in general, meet the cost of the LPC for those to whom they have offered training contracts. As this is now a main source of funding for the vocational stage, the question of whether the recruitment practices of firms are fair, takes on great importance. The majority of BVC students meet their own fees, although the Inns make a number of substantial scholarship awards, which include the BVC fees. Additionally, some Chambers' pupillage awards permit the recipient to draw down money during the BVC year, thus enabling some of the costs of that year to be defrayed. The General Council of the Bar has the system of student financial support under current review, and it is hoped that this may result in some further financial support becoming available to assist students with the cost of the vocational course.
In addition to sponsorship by firms, there are limited schemes of financial support available, some offered by the larger providers, and some through such initiatives as the Law Society's Diversity Access Scheme. Sponsorship is also provided by the scholarship schemes of the CPS and LSC.
Funding problems are not the whole story, and the comparison between law and teaching is instructive in this respect. For trainee teachers, full costs are met, and there are additional financial incentives to attract trainees. Yet only 2.4% of teachers come from BME backgrounds, compared to 7.9% of solicitors and 9% of barristers.
The cost of qualification is a factor that should be taken into account in any future review of qualification arrangements. Routes to qualification that give credit for work based learning may be more manageable, financially, for some students. It is welcome that some providers now offer the vocational courses in ways that allow employment and study to be combined, for example by scheduling weekend teaching.
The Panel used its conference on 23rd November 2004 to explore the attitudes of firms towards students who had completed the academic stage of training through the Common Professional Examination/Graduate Diploma in Law route, rather than by taking a law degree. The proportion of BME students on the CPE/GDL is lower than on law degrees, and thus could be a factor in the relative number of opportunities open to BME students. CPE students are more likely to be male, white, from professional family backgrounds, and educated at independent schools.[Endnote 23]
Representatives of the major firms confirmed that there was some preference for CPE/GDL students. They were attracted by the greater maturity they saw in graduates who had qualified through this route. Such graduates are, on average, a year older, and will have committed themselves to the study of law when they are older. Firms judge candidates, in part, on how they think they will inter-act with their clients. ("Would I be happy to send this trainee to collect a major client from the airport?" was a criterion mentioned by one person.) Personal maturity and presence is a factor of which applicants should be aware.[Endnote 24]
The recruitment practices of large firms and major chambers are critical to progression from the vocational courses into the professions, and consideration needs to be given to whether recruitment practices present any barriers. The Law Society cohort studies referred to above suggest that the major firms of solicitors tend to concentrate their recruitment on a limited number of Universities, and that amongst the elite City of London firms there is some bias against candidates from the lower socio-economic classes.
The Panel used the conference to explore also the claim that the major firms do not recruit from the "new" universities. Representatives of firms felt that this was changing. This view was supported by an article in The Times [Endnote 25] which reported that a number of the elite firms are already recruiting above the benchmark 10 % of ethnic minority candidates set by the Law Society, and some are recruiting more actively from the "new" universities. The data for such articles are volunteered typically by the firms themselves, and independent research into the position would be helpful. Comments at the conference suggested that students from the older universities tended to have a better knowledge of the structure and workings of the legal profession. However, these observations may have been based on experience of a sample of trainees that was already skewed towards such universities. In addition, an expectation that such students possess "better knowledge" may be self-fulfilling, if those old universities benefit from being targeted with literature and visits from the major firms, which will contribute to student knowledge of the legal profession.
New universities tend to have a higher proportion of BME students. They should ensure that they are aware of the factors that could improve the chances of their students succeeding in securing employment within the professions. Universities collectively could also assist by reforming the degree classification system. It is not consistently norm referenced between institutions, thus making it difficult to use degree classification alone as an indicator of academic achievement. This would enable employers to make reliable judgements of the merits of candidates from different universities, and could encourage recruitment from a wider range of universities.
In short, firms should be encouraged to look for their recruits from a wider range of universities but, in return, universities should be more aware of the attributes that firms value, and should seek to develop these in their students.
A major issue is that of progression to the senior ranks of the profession, QC in the case of the Bar, and partnership in the case of solicitors; and progression to judicial office. The significant growth in the numbers of BME lawyers is comparatively recent, thus the passage of time may see more rise to the top. However, that cannot be taken for granted.
The progression of women within the solicitors' profession suggests that more could be done to support them in their careers, and to overcome inequality in the economic and status rewards accorded to them. Research by McNabb and Wass [Endnote 26] found that, on average, female solicitors earn only 56% as much as their male counterparts. This is explained only in part by the greater proportion of younger solicitors who are women; the researchers found that limited access to partnership status and lower earnings growth once promoted are significant factors. Lower earnings were not explained either by the career breaks and caring responsibilities more often associated with female solicitors bringing up families. This suggests significant inequality in the economic and status rewards enjoyed by female solicitors, in comparison with their male counterparts. As in a number of other countries, there is a significant loss of qualified women lawyers in their late 20s and 30s.[Endnote 27]
Career structures within the legal professions will need to be kept under review to ensure that women and those from black and minority ethnic backgrounds do make progress at all levels within the professions, and that there is a large enough pool of senior candidates from such groups who can enter the judiciary.
There is a strong case for an ongoing programme for monitoring diversity within the legal profession. A recent survey by the Lawyer magazine [Endnote 28] found that 22.5% of firms of solicitors had no formal diversity policy. The report on the DCA consultation on increasing diversity in the judiciary [Endnote 29] found almost unanimous agreement on the need for monitoring diversity.
The Panel recommends that firms and chambers should undertake diversity monitoring, including keeping records of the gender and ethnicity of partners/QCs. Information from diversity monitoring should be available on the website of the organisation. If this was thought to be a desirable practice, government could use its power as a major purchaser of legal services to use only those organisations that publish such information. This would be no different to government choosing to use organisations that meet quality standards (such as IIP or ISO), setting standards for legal aid franchising, or putting requirements to comply with good practice in corporate government in contracts.
The panel recommends that firms and chambers should also adopt policies designed to ensure that equal opportunity becomes a reality that is embedded within the culture of the organisation. Such policies should include:
The Panel recommends that training providers and professional bodies should also keep under review the adequacy of their diversity policies and training strategies.
The DCA should undertake comparable monitoring, by gender and ethnicity, of progression to the status of QC, and of appointments to and progression within judicial office.
The terms of reference seek advice on increasing competition and expanding markets. These are two major issues, full consideration of which would require economic analysis and expertise that lies outside the field of competence of the Panel. In relation to the competition aspects of references made to the Panel that concern rules of conduct and qualification, the Secretary of State normally looks to the Director General of Fair Trading for advice. As such, the Panel limits itself to some general observations, and a specific comment on the impact of market forces on the availability of places in pupillages and training contracts.
The effect of the Courts and Legal Services Act 1990 was to introduce the possibility of competition in a number of fields of legal service, and the Panel and its predecessor have supported a number of applications that serve to increase competition, especially with respect to rights of audience. Beyond this, the Clementi report deals with a number of competition issues, particularly those relating to the ownership and control of firms. The Panel does not think it sensible to comment on matters that are the subject of recommendations in the Clementi Report.
With respect to expanding markets, there are some risks of unintended and adverse consequences. The markets for litigation and advocacy could be increased by increasing the funding available for legal aid. However, some attempts to expand the market may carry risks of promoting a compensation culture, and making less use of alternative dispute resolution; neither of which would be desirable outcomes. Similarly, the market for general legal advice could be increased by a growth in regulation, but this would be contrary to the direction signalled by the Government's good regulation task force.
The government can have an impact on the market for legal services at the level of macro-economic management. Much legal business is commercially driven. When the economy is buoyant, so is the market for legal services, through mergers and acquisitions, company formation, domestic conveyancing, and a range of commercial transactions. When the economy is in recession, other types of legal work become available, such as repossessions. Given the undesirability of recession, the best contribution government can make to expanding the market for legal services is to continue to manage the economy for stability and growth.
At the macro level also, the government should do all within its power, including maintaining the high standards of the judiciary, to ensure that the London courts remain the tribunals of choice for the resolution of commercial disputes between parties in different jurisdictions.
At the micro level, the Government should consider distributing regulatory cost on the basis of risk. The cost of defalcation is borne by all principals, and the cost of complaints by all practising solicitors, even though the firms that provide the majority of employment opportunities do not give rise to most of these costs. If regulatory cost continues to rise, unrelated to risk, it could become a factor in the number of job opportunities available.
The number of opportunities that are available in training contracts and pupillages is a matter for the working of the market. Employers cannot be expected to take on more trainees than those for whom they have a reasonable prospect of having work. If it is accepted that some practical experience is an essential part of the process of professional formation, then market factors will always govern the number of training opportunities that are available. If that number, in any year, or over a given period, is finite, then opening doors to qualification for some will mean, inevitably, closing those doors for others. This makes it all the more important that legal careers are widely defined, and not perceived narrowly as being limited to the traditional professions. The skills acquired at both the academic and vocational stages of training are relevant to a wide range of jobs.
The Panel recognises that the wider competition issues included in the terms of reference are of importance to the future development of the market for legal services. Understanding the issues, and developing robust policies in this area is a major task, and is likely to be a concern for any independent regulator of the legal profession. It will be important for the Legal Services Board to be equipped with the research and policy capabilities to address such issues.
The Panel welcomes the opportunity to engage with this important issue. However, it is conscious that it is not properly resourced to take on references of this kind, as a body that works on a largely voluntary basis, and with staff resources that were never intended to support significant research. In the course of responding to this reference, the Panel has become aware of the substantial body of research that is available on this subject. A full literature review, let alone the commissioning of further research, is beyond the resources of the Panel.
The Panel is aware that its functions may pass to the Legal Services Board, if Parliament legislates to create that body. Given the importance of this issue, and of this type of reference, the Panel recommends that the Legal Services Board should be properly resourced to conduct or commission its own research into issues such as this, and to respond to future references of this nature.
In the light of its work on the current reference, the Panel makes recommendations for research, to be undertaken in future by the Legal Services Board, which would facilitate future monitoring of diversity within the professions. This should include the periodic longitudinal cohort study of progression from higher education into the professions mentioned above. However, a prime focus should be on progression within legal careers, to enable barriers to be identified and addressed. Research should include firms of all sizes, so as to identify if there are particular problems with any type of firm. In the light of research findings, the Legal Services Board should disseminate examples of good practice.
Legal services consultative panel
May 2005
1. Bar Council annual report, reported in The Times, 10.5.2005.
2. Law Society Annual Report 2002 -03, p.7
3. Shiner, Michael (2000) "Young, gifted and blocked! Entry to the Solicitors' Profession" in Discriminating Lawyers (ed. P.Thomas), pp 87-120
4. Entry Into the Legal Professions: Law Student Cohort Study. Years 1 and 2 (David Halpern), Law Society Research Study No.15. Year 3 (Michael Shiner and Tim Newborn), Law Society Research Study No. 18. Year 4 (Michael Shiner), Law Society Research Study No. 25. Year 5 (Michael Shiner), Law Society Research Study No. 33. Year 6 (Elizabeth Duff, Michael Shiner, Andrew Boon), Law Society Research Study No. 39
5. Fourth Equal Opportunities Report, Legal Services Research Centre, August 2004
6. Review of the Regulatory Framework for Legal Services in England and Wales, Sir David Clementi, December 2004
7. Advice Services Alliance, Advice UK, Citizens Advice, DIAL UK, ILEX, LGA, Law Society, Law Centres Federation, OISC, Refugee Council, Shelter, Shelter Cymru, Youth Access.
8. J. Bell and J. Johnstone, "General Transferable Skills in the Law Curriculum" (1998), pp 17-18.
9. V. Bermingham and J. Hodgson, 'Desiderata: What Lawyers want from their recruits' (2001) 35 Law Teacher 1.
10. This sort of information is provided by the Association of Graduate Careers Advisory Services (AGCAS), working with the legal professions, but there is a permanent need to ensure the expectations of students are based on full information about likely prospects.
11. Morganbesser v Consiglio Dell'Ordine Degli Avvocati di Genova (C313/01)
12. Qualifying as a Solicitor - a Framework for the Future. Law Society, March 2005.
13. In the 2003 entry, UCAS figures suggest that 65.5% of the UK students under 20 years of age accepted to study law were women and 26.1% came from ethnic minorities: see Table 13 of November 2004 Discussion Paper.
14. For the 2003 entry, among the UK students aged under 20, those accepted to study law constituted 4.75% of all university entrants in that year. But the proportions vary between ethnic groups. Those accepted to read law constituted 9.6% of all Pakistanis who entered university, 8.4% of all Bangladeshis, 6.7% of all Black Caribbeans, but only 4.2% of all white British university entrants.
15. Shiner 1997
16. UCAS figures for the 2003 entry of all (law and non-law) under-20 UK students reveal only 0.64% of all Black Caribbean students gained 480+ tariff points, compared with 5.4% of all Indian-origin students and 7.8% of all white British students accepted by universities.
17. 'Indicators of Academic Performance', "Cambridge University Reporter", 12 February 2003, available from the Cambridge University website: www.cam.ac.uk.
18. Equality, Diversity and the Legal Practice Course, Research Study 49, Strategic Research Unit, the Law Society, 2004.
19. 340-360 UCAS Tariff Points
20. Young Participation in Higher Education (HEFCE 2005/03)
21. Jackson and Marsden, Education and the Working Class (revised edition, Pelican, 1966)
22. Blanden, Gregg and Machin. "Intergenerational Mobility in Europe and North America", Sutton Trust, April 2005.
23. Shiner, op. cit. 93.
24. Bermingham and Hodgson, op. cit., p 20. It should be noted that large class sizes in many Law Schools (even for 'small group' teaching) make it difficult for students to enhance their skills in areas such as thinking under pressure and responding to probing questions through the Law Curriculum.
25. The Times, Student Law Supplement, 18.1.2005
26. Male and Female Earnings Differentials Among Lawyers in Britain: A Legacy of the Law or a Current Practice? Robert McNabb and Victoria Wass, Cardiff Business School, August 2004.
27. Law Society Research Study 48: "Equality and Diversity: Women Solicitors" (May 2004); DCA, "Increasing Diversity in the Judiciary" (CP 25/04), pp 113-8.
28. HR Report 2005, The Lawyer, 29th March 2005
29. Increasing Diversity in the Judiciary, DCA, October 2004