Young lawyers want a say on their future
Camilla Graham Wood on the issues impacted the junior end of the legal profession
We know the problems with the current, rigid and expensive route to becoming a solicitor and the barriers this creates to a more diverse profession where social mobility is a reality (see the Young Legal Aid Lawyer’s (YLAL) report: ‘One Step Forward, Two Steps Back’). But are the alternatives on offer now the ones we want?
Aside from the option of doing the graduate diploma in law (GDL) or legal practice course (LPC) part-time while working, there are two main rival options emerging: the Chartered Institute of Legal Executives (CILEx) and ‘equivalent means’.
Behind the times
More and more junior lawyers are choosing the CILEx path as it presents a cheaper, more flexible route to becoming a legal professional. However, legal aid firms need to get up to speed and understand the support required for those choosing this route, the benefits of this route, and include legal executives when advertising junior roles. Those qualifying in legal aid firms through CILEx need to speak out more about their experiences and discuss whether this path addresses some of the key problems those wishing to pursue a career in legal aid face.
Equivalent means
A fair bit has been written about equivalent means, and, according to the Junior Lawyers Division (JLD), at least one person to date has qualified via this route (see SJ 159/6). Introduced by the SRA in July 2014, to the surprise of the Law Society, who, at the time, said the regulator did not “appear to have consulted about this change of approach [in training] (see SJ 158/32), it is a process by which people are able to qualify as solicitors without undertaking a training contract. Assessed learning or formal work placements that meet specified outcomes can be used as a way to demonstrate ‘equivalent means’ to a formal training contract. It can also be used to exclude the need for the LPC or the GDL. Applications can be made to discount individual components of the academic, LPC or training stage of qualifying as a solicitor for a fee.
Assessment based on competence, where the outcome rather than the route is the focus, could be argued as increasing access to the profession. And, if quality can be assured, then it matters not whether competence comes from a training contract or other experience. Legal aid firms could benefit from the changes, as could junior lawyers who often gain more real case work experience than a trainee in a large firm, but whose firm cannot commit to a training contract as they struggle to stay afloat following swingeing cuts to legal aid.
However, without what some see as the necessary academic and quality barrier of a training contract, which rewards those who perform well before they start on the ‘period of recognised training’ (PRT), lawyers could simply have the point of disillusionment moved further along in their career. The training contract rejection could simply come several years later, when individuals apply to have their experience recognised as equivalent. Rather than solving the problem of junior lawyers spending years as poorly paid paralegals, it will mean those at the bottom will simply become badly paid solicitors, and the equivalent means route will fail to provide real, equal opportunity for those seeking to become solicitors.
No doubt further arguments for and against might be put forward, but it is a concern that these arguments seem to be taking place solely in the comment sections of news articles. There has, in my view, been too little opportunity to debate these issues with the SRA. Nearly a year after the scheme was introduced, it is time to have a debate, with evidence from the SRA about whether the scheme is working, and to hear the concerns of stakeholders.
Voice of the stakeholder
The SRA consultation ‘Training for Tomorrow’ (December 2013) put forward the idea of equivalent means (proposal 1 stated this was ‘to remove complex and inflexible exemption arrangements’ and proposal 4‘to remove the requirement for training to take place under the terms of a contract specified by the SRA’) but the consultation lacked much in the way of detail, such as what type of work would be submitted for consideration, how it would be assessed, and the guidance for applications.
The SRA’s response, ‘Regulations Review: Removing unnecessary regulations and simplifying processes’, published in April 2014, did little to respond to these concerns, and left some considerable ambiguity as to how the scheme will work in practice.
The review states that 41 responses were received to the Training for Tomorrow regulation review (for which the consultation papers were launched in December 2013). Responses to proposal 1, to remove complex and inflexible exemption arrangements, which allows equivalent means for academic qualifications, are as follows:
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“94 per cent of the respondents [it is not clear if this is respondents to this proposal, or respondents in total] expressed overall agreement with this proposal. Some support was qualified by the comment that we will need to ensure that we provide ‘clear and explicit and well publicised information on what will qualify as ‘equivalent means.’” The Law Society in response said “We strongly agree that there should be greater flexibility in routes to qualification in the interests of equality and diversity and social mobility.”
Responses to proposal 4 – to remove the requirement for training to take place under the terms of a contract specified by the SRA – are again as follows:
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“[The SRA] received 36 responses to this proposal of which 26 (72 per cent) expressed support for the removal of the requirement for training to take place under the terms of an SRA specified training contract, five (14 per cent) were against the proposal and a further five (14 per cent) supported the proposal only on the condition that [the SRA] required the training regulations to be incorporated into the contracts between the trainee and the training provider. Of the 26 responses in support of the removal of the SRA specified training contract, ten also said that they would prefer to see a regulation requiring the incorporation of the training regulations into contracts between training providers and trainees.”
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“The Junior Lawyers Division (JLD) said that it is ‘in agreement that there should be a recognised period of training with the requirements relating to the content and duration of training remaining as stated and acknowledged in the proposal.’ The Law Society said: ‘In principle we have no problem with the removal of the specified SRA contract agreement. Our chief concern is that the protections, remedies and rights available to the trainees are not reduced, and that the trainee’s status as an apprentice is not called in to question.’ “
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In its response, the Sole Practitioners Group said that “provided that the regulatory focus on the standard and quality of training to take is stringent and that training organisations remain under scrutiny, AND ONLY THEN, we approve the proposal to remove the need for training to take place in accordance with the terms of a contract specified by the SRA, so that the employment rights and obligations subsisting between trainee and training provider are no longer prescriptive.”
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The Lawyers with Disabilities Division said that it did not agree with “full abdication of responsibility for specifying the terms of the training contract”.
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The YLAL expressed concern in their response that “the SRA ensures adequate safeguards for the quality and conditions of the training contract experience.”
Commenting on the responses, the SRA focused on the impact on contractual remedies for a junior lawyer against his or her employer, but felt employment law was sufficient to deal with this.
It said: “We also consider this approach to be consistent with a key objective behind the proposal – to withdraw from involvement in the employment relationship between trainee and training establishment and refocus our regulatory interest in the quality and standards of training”.
Without further consultation or discussion with stakeholders on requirements, guidance or indeed any detail on the new scheme, on 21 May 2014, the SRA announced that its board had approved changes to the regulations as part of Training for Tomorrow. The regulations were then published at the end of July 2014.
Paralegal shortcut
The change that has attracted most debate is the application of a PRT – dubbed a ‘paralegal shortcut’ – as it avoids the need for a training contract (see SJ 158/32). Instead, there is an assessment of equivalence of professional qualifications and experience against the requirements for recognised training under the Training Regulations 2014. The application is for those seeking to gain an exemption for all or part of the PRT. Applicants must have completed, plan to complete or gained exemptions from the academic stage of training and the LPC. Mark Stobbs, director of legal policy at the Law Society, said the society supported flexible routes to qualification but questioned whether many paralegals would be able to satisfy the new requirements. He added: “It is important the SRA consults properly on any significant changes to ensure that standards are maintained.”
This last point is key, given the lack of clarity over the proposals and the lack of engagement thus far. If the profession,along with those seeking to enter the profession, does not understand equivalent means or support it, it is unlikely to improve access.
The SRA has recently informed me that once it has enough positive equivalent means cases, it will present case studies to help guide applicants. It agrees that awareness of equivalent means is not yet high. It also says that the most significant change comes further down the line when it reforms qualifications and pathways. It states that both flexibility and ensuring rigorous and consistent standards are important. There is no indication that there will be any formal consultation on future proposals.
With so many unanswered questions and so much future change yet to come, this is a perfect time to consult the profession on equivalent means, discuss the guidelines, let the opposing parties state their case based on the evidence, and let the SRA show the evidence this new system is working fairly in the interests of the next generation of lawyers. SJ
Camilla Graham Wood is a YLAL committee member and solicitor at Birnberg Peirce & Partners
@milliegw
The potential of equivalent means
Carol Cook is policy manager of education and regulation at the SRA
We introduced the equivalent means provision because we wanted to say, clearly and unequivocally, that if the qualification pathway outcomes of any stage have been met by different, but equivalent means, we will recognise that. We have always done this, but the bar was set high: it required an application to waive a training regulation, and the need to establish the exceptional circumstances.
The equivalent means provision – and the processes supporting it – resets the bar at a level which ensures the necessary outcomes have been met, but removes the barrier presented by the need to establish exceptional circumstances. We consulted on our proposals in 2014 and received positive responses from, among others, the Law Society, JLD, and CILEx.
When we introduced equivalent means, our Training for Tomorrow work had just begun. We wanted to refocus our regulation on ensuring competence and standards, and away from stipulating specific inputs. Introducing this provision was consistent with this approach, and LPC graduates who work as paralegals are likely to benefit most. We can assess their learning and abilities in the context of their work against the outcomes we require of the formal training period. Currently, applications are being completed retrospectively: applicants are looking back at their work and finding the evidence. This could be challenging and painstaking.
We have received 29 applications for this recognition. We have granted four, five have been withdrawn, and 20 are pending. We carry out an initial check on applications to see if we can provide guidance on overall quality and whether they might need additional detail or evidence. The applicant can make further representations on the detailed assessment of their application before we make a final decision. It’s a tough process, but it’s fair and transparent.
To benefit fully from this, LPC graduates working as paralegals should plan now for future applications. They need to think about evidence to support their application, work with their employers to set objectives and development needs that meet training stage outcomes, plan their work, keep a diary, and keep records of appraisals and performance reviews.
While the education and training community has been slow to respond to this provision, employers are seeing the potential. Paralegals are essential and highly-valued, but employers have not been able to offer formal training. Equivalent means could be an excellent development tool for them.