Red-LETR week?

Pleased to have made it to saturday! Even by our current standards its been a big week for the LETR research team. I don’t normally bore folk with the details, but I thought today I’d give you an insight into the scale and scope of what we are doing.

Monday saw the launch of our online questionnaire. Its a complex instrument, with lots of different pathways (‘pipes’ in the jargon) for different groups of respondents, and has been under development for a while. As usual everyone on the team has had a hand in developing and testing this, but its particularly thanks to Simon Thomson and Avrom Sherr that its out there. If you haven’t responded yet, the link is on the LETR website; we really do want to hear from as broad a range of people as possible – including consumers of legal services, as well as the usual suspects.

We have also started our research work this week with the approved regulators – although the BSB, SRA, and IPS are funding and (in a sense) overseeing what we do, they, and the other approved regulators, are also part of what we are researching – they have data on the profession, they have views on what’s working and not working and their own perspectives on the role of education and training as a regulatory tool. This is all grist to our mill.

We have also had a number of important events and meetings. On Monday I spoke at a briefing event at Herbert Smiths on LETR and legal apprenticeships for the Legal Education and Training Group (with excellent presentations from Charles Welsh from Skills for Justice and Jenny Pelling of ITS). Yesterday Jane Ching, Simon T and I met with senior representatives from the Inns of Court at a meeting we had arranged at the Inner Temple. There were moments when being cross-examined by three senior members of the judiciary, the Treasurers and/or Under Treasurers of most of the Inns and a bevy of senior QCs did feel like being hit by a very skillfully and courteously directed bus! Nevertheless it was, I think, an extremely valuable meeting for all of us, and a re-match is being planned. Our particular thanks to Fiona Fulton and Anthony Dursi for organising this, and setting up a focus group of junior barristers to follow on from the meeting. And then, of course, on Thursday, there was the Nottingham Law School legal education debate, which marked the launch of Nottingham’s new Centre for Legal Education – led by Becky Huxley-Binns and our own Jane Ching.  The morning saw a lively debate, chaired by Baroness Ruth Deech, and attended by a good mix of practitioners, students and academics. The debate itseld has been blogged by Paul Maharg, but it was also well attended by the twitterati, who provided a really lively real-time counterpoint to the live event, generating over 500 tweets over the course of the day (BILETA have produced some great stats on this – here). As Michael Thomson ‏ (@ekbusinesslaw) observed, “a great example of knowledge sharing & learning from other law tutors”. In the afternoon Jane, Paul and I delivered another briefing on LETR, and got participants to engage with us on a range of questions raised by the Review.

A particular mention in LETR dispatches has to go to Jane Ching this week – Jane was out every day on LETR business – CILEx on Monday, research focus group in London on Tuesday, IPReg (with Avrom) on Wednesday, NLS debate on Thursday and back in London at Inner Temple yesterday – a definite star turn, particularly when you recognise that we all still have a large part of our usual day jobs to do as well!

As for next week – rather less travelling and more reflection, consolidation of this week’s work, and preparation for next set of visits to the regulators, more focus groups and, particularly for Natalie Byrom and me, the development of our work with the unregulated sector….

 

Holding a mirror up to nature

Rather belatedly I have caught up with a discussion over at Richard Moorhead’s Lawyer watch blog, in which Richard looks at the College of Law’s new two year LLB and questions the extent to which it is likely to be as different from other LLBs as it claims to be. A critical point in Richard’s argument is that

The real, intellectual difference between the College’s approach and the traditional law school’s approach is most likely between the College’s emphasis on teaching students in the practical utility of law. In the College this is likely to lead to solid practical teaching of solid practical legal skills in determinedly practical contexts. A bit of this is a good thing.  In fact, problem based learning is well established in some undergraduate curricula already.  But to concentrate on this to the exlcusion of everything else?  That gives me concerns.  Students are likely to be well trained in a mechanistic way but will they be inspired?  Will they understand the broader picture? Will they develop critical thinking skills?  The key thing that an excellent University education provides beyond the basics is those moments of inspiration, where the student’s world view may be genuinely transformed.

This post generated a number of interesting responses, including a thoughtful post from the College’s Scott Slorach. Amongst a range of points, Scott takes on Richard’s concern that the College will not address the ‘broader picture’, as follows:  

The broader picture is the understanding of the practical, contemporary contexts in which legal principles are applied in order to facilitate transactions, assert rights, allocate risk, seek remedies, govern businesses, define relationships, and so on. Providing this broader picture of the interests of individuals and businesses, and how practising lawyers use the law to maintain, develop and protect these interests is paramount to a deep understanding. I agree with you entirely that an excellent education should be one which provides the “spark [which] is necessary for life-long learning, commitment to professional ideals and to produce the truly exceptional individuals who can cope with transformative change. It is also necessary for the quality of university as a life experience.” I believe that providing students with the aforementioned broader picture will create an environment where the sparks will be in the form of “Now I see why…”, “So that’s how you can…”, etc. That is, understanding not only what the law is, and why the law is as it is, but, most importantly, how it can be used practically for the benefit of individuals and businesses. It is this latter relevance which can provide understanding and continued motivation to learn from the start.

Now we could, of course, just mutter that there is room for many approaches and respect the virtues of a thousand flowers blooming and leave it at that, but I can’t help but wonder if there isn’t something fundamentally a bit troubling about Scott’s response.

I agree absolutely that degree level education needs to address the various dimensions of “what”, “how” and “why”, but I am concerned that what Scott offers is (i) not necessarily a “broader picture” – though it may be different from what many law schools currently offer - and (ii) both (as that paragraph demonstrates) an elision of the how and the why, and a prioritisation of a particular how that may be ethically troubling. If we present law in a primarily vocational setting that emphasises the ‘use of law for the benefit of individuals and businesses’ that seems to fit rather well with the utilitarian ethos of the times. It is pragmatic in a way that may well attract students focused on their future job prospects, though they may not actually have a great grasp of what will best equip them for the marketplace, and it may be moot whether any law degree presently fits that bill (which is, of course, one of the questions LETR is looking at). But is it what our students, and society, actually need a higher legal education to be?

At the risk of over-simplifying the issues, I worry that Scott risks prioritising a hired gun model of lawyering, by narrowing students’ understanding of the social context in which law operates to the horizon of the prospective client. Doesn’t a deeper and broader understanding of context require a grasp of the wider social functions and moral ambitions of law, and doesn’t the examination of that require some commitment among teachers of law to understanding and researching ‘law in action’ (a wider concept than law in practice?) and, dare I say it, a philosophy of both law and education, not just training? Law degrees probably should engage with the practice of law more, and I absolutely agree that understanding ‘why’ in a practical context can be a really useful trigger. But its not the only one. A wider understanding of the social context enables us to shine a critical light on, not just hold a mirror up to nature. And isn’t that the way it should be?   

 

LETR: draft literature review published

We – the LETR research team - published the draft of our main Phase 1 output, the literature review on Friday. It’s great to have this first major milestone complete, and particular credit goes to Paul Maharg, who lead the work on this phase.

LETR is distinctive relative to other reviews of education and training in starting this way with a substantial review of the existing literature, in this case dating back to the 1971 Ormrod Report. We think this should be one of its strengths: it provides an historical context, synthesizes literature from other jurisdictions and professions, and focuses on the regulatory framework to reframe existing debates and create an original analytical framework for our work. The resulting draft is a substantial piece of work – around 230 pages – and will be the most overtly academic output from the research phase of the review, though obviously our final report will do more to contextualise the literature in ways that highlight its practical and policy relevance. We will be revising the draft in due course and invite comments on it.

In the interim, we will also be publishing our first major discussion paper within the next week, calling for evience on a range of key issues.

Creativity and assessment

With the demise of UKCLE, I have got drawn into a bit more teaching this term than in recent years – even with the buyout for LETR. And I have to say I’m really enjoying it, I’ve got a nice mix of undergraduate legal theory, postgrad teaching on a module we call Foundations of Socio-Legal Theory and Research, and a joint Law and Business module – Critical Issues in Law and Management (CILM) – that my colleague Grier Palmer (Warwick Business School) has developed. CILM is one of those great modules where content in a way comes second to process. It is primarily a vehicle for developing creativity and critical thinking, and so we use a lot of student-centred activity and presentation work, a bit of open-space learning, and assess through an essay, book review, and a set of reflective logs. Its quite experimental for both the students and those of us teachng on it!

One of our experiments this year, which is linked to a larger project on case-based learning that Grier and I are involved in for Warwick’s Institute for Advanced Teaching and Learning (with colleagues from education, health, and the Medical School), has been to create a case study around the notorious Bhopal gas tragedy. Twenty-seven years after the original explosion at the Union Carbide plant in Bhopal, this is still having a massive impact on the lives of its victims  As a case study it is a massively rich and powerful teaching resource. There are lots of primary and secondary materials available, and it provides a good vehcle for exploring a range of related legal, business and human rights issues.

We decided to run the Bhopal case as a student-led activity – we have a group of 10 CILM students who take the course as a 30 credit module, rather than the usual 24. So, their ’6 CATS project’ this year was to lead the rest of the class in preparing to stage and then staging a Peoples’ Tribunal hearing on the continuing impact of the Bhopal tragedy. This work was spread over four weeks and integrated into the class time, starting with a briefing session for the 30 CATS students  in week 1, followed by a ‘book review’ session for the whole class – discussing and critically analysing a range of academic literature on the Bhopal tragedy. That in turn was followed in week 3 by a student-led session in which the 30 CATS team briefed and worked with their 24 credit peers on planning the tribunal. The tribunal itself was then held in week 4, over a two hour teaching slot.

We haven’t yet seen the 30 CATS students reflective pieces on this activity, but my initial sense is that it was reasonably successful, and something I would like to further develop. One of the great things about it was that, with a cohort of around 50 students on the module, we had two iterations of both the planning session and the Tribunal itself. This really gave the 30 CATS students an opportunity to reflect on what worked well and what didn’t, and to take action almost immediately to implement change. This worked really well in the planning session, so that the second was noticeably more structured, better managed and more dynamic – a great example of how students can really very quickly learn from experience. Interestingly, though the 30 CATS students are assessed on the whole process, not just the Tribunal, a lot of the assessment anxiety clearly homed in around the tribunal performance itself. One manifestation of this was that, though there was some really great content, the event was closely scripted and lacked a bit of the dynamism and creativity we were hoping to see. This isn’t meant as a criticism of the students; they could see it for themselves, and it one point in the second iteration, they ‘let go’ of the script and engaged in a bit of improvisation, and in that moment brought a wholly different energy to the activity .

For me it raises some interesting challenges. The assessment context clearly had a chilling effect and encouraged the students who were being assessed to play it a bit safe, even though that involved an element of discrepant reasoning, since they also knew that creativity was something they would get credit for. As a teacher, I want to maximise the opportunities for my students to think and act ‘outside of the box’, and to get credit for it; I don’t want to marginalise creativity by treating it as unassessable. I I therefore want to create a  space for enabling and encouraging risk-taking, and now I’m wondering whether that needs to be constructed as somewhere safe, or maybe it does need to be slightly edgy? I also want to get inside and disrupt that kind of intuitive cost-benefit thinking which drives them to play safe, and, I suspect, is ingrained by years of traditional assessment practices. I can already see that we may have left a gap between creativity and risk-taking, both conceptually and in terms of getting the message across about what we were looking for from this asssessment. So, a bit of work to be done!

 

Vision, what vision?

The news on 7 November that 24 universities and three FE colleges had submitted revised access agreements for 2012-13 to the Office for Fair Access (OFFA) is a deeply depressing statement on the current state of the policy and politics of English HE. Most of these new agreements were submitted close to or on the 4 November cut-off stipulated by OFFA – not surprising given that the Higher Education Funding Council for England (HEFCE) was only able publish information on the bidding process under the government’s new wheeze of a ‘core and margin’ system of funding on 17 October.

Much has been made in the media about the late timing and its impact on this year’s round of UCAS applicants, who are at present having to select their universities for next year on the basis of inaccurate financial information about fees and scholarships. OFFA has promised to publish revised agreements ahead of the UCAS cut-off of 15 January, but it will be interesting to see whether this delay has a further impact on what may already be a wobbly and uncertain year for admissions (see my last post).

For me, what is most depressing about this whole episode is the extent to which policy is simply being made on the hoof, creating even greater uncertainty for not just the students, but the sector and the local economies the universities do much to support. The government’s original great wheeze on fees didn’t work, which, worryingly, surprised no one except the government. Equally worryingly, the herd instinct once again came to the fore amongst university and college senior managers. Few obviously quite vulnerable institutions in the sector seem to have anticipated that the government would respond to force average fees closer to their desired level, or if they did foresee it, they took a rather poorly calculated risk. If nothing else, they will be exposed as the first to blink (though whether that is tactically smarter than waiting a year remains to be seen).

What this whole episode clearly exposes is the hollowness of rhetoric around the fitness and purpose of a modern HE system. This is not about efficiency. This is not about HE quality, it is most certainly not about the students. It is all about the sums. It is not a good way to run an education system.

Law School applications and social mobility

Publication of the first round of UCAS figures brings news of an overall fall of 11.9% in home applications to university compared with this time last year. That won’t come as a great surprise to many doomsayers in the wake of the Government’s carve-up of higher education (a process which was of course commenced by the previous lot – in case you thought my political biases were showing).

But whether it will all be doom and gloom is not something we should be predicting at this stage – it is simply far too soon to tell. The only deadline that has passed is for  Oxbridge, medicine, dentistry and veterinary science – and these only show 0.8% decline. None of these are ‘ordinary’ parts of the HE ‘market’ so we should equally not read too much into that either. Given the high demand for all these areas, one might reasonably expect only a small decline here – so that in itself may not say much about what will happen in the rest of the sector. At this stage, I think, there are only trends to watch.

First, there are big variations in how the (apparent) decline is affecting different disciplines: -26% in business studies, and -17% in architecture, for example, whereas law is only -5%. Such variations could make hitting targets and managing student numbers a lot more ineresting for universities, particularly in the context of the new recruitment game that has been created by splitting the ‘market’ into high achievers (AAB+)/core and margin.

Secondly, the decline in home student numbers so far has been offset by a rise in international applications. Is this a sign of increased recruitment activity by UK universities as a safety net, and/or is it symptomatic of students moving away from the US and Australian markets, both of which have had their troubles? We shall have to see.

Thirdly, rather more troubling is the noted decline in mature student numbers. Overall, applications from students aged 19 or over has fallen by 19.2 per cent. Applications by those aged 30 to 39 have fallen by 22.7% and by those aged 25 to 29 by 21.4%. These age groups do quite a lot of the sector’s work for diversity and social mobility – the participation rate of black 17-30 year olds, for example, exceeds that of white students; for 17-19 year olds it is below the proportion of whites.

Underneath this, of course, is the troubling concern that any significant decline in undergraduate student numbers is going to impact the sector’s continuing poor performance on social mobility (as opposed to diversity – we are pretty good at middle class diversity now in the UK, its really upping the mobility of the working class we still have problems with). In their background papers for the White Paper, BIS advisors made the point very clearly that social mobility would be assisted by an increase in student numbers, which, of course, the Government has felt obliged to ignore (and yet still claim its reforms will be good for social mobility).

To what extent students will be put off by the spectre of massively increased debt is moot, and an issue we have been currently exploring as part of the LETR literature review. Research on earlier changes to the fee regime have not uncovered the fear of debt as having a significant or systemic effect on participation, but we are moving into a different country now, with the average level of indebtedness predicted to more than double (and averages in this area are notoriously unhelpful; I suspect – but can’t prove – that they disguise a broad range with quite a lot of polarisation towards the ends of that range.

In the US, law school applications for 2011 were running 12.5% down in January, levelliing up slightly to a 10% decline by September – the biggest drop in 1o years according to the Wall Street Journal, but that’s probably still not big enough to have too many Deans and Admissions Directors losing sleep.Would a 5% or 10% decline in applicants have a serious impact on UK law schools? The ratio of applications to places across the whole sector works out at roughly 1.5 to 1, so there is capacity to spare, though this, of course, disguises massive variations in the demand for places between institutions. A 10% drop may well be enough to make life very uncomfortable for some of the least popular recruiting universities. The new funding regime, again adds to the complexity here.  If  their core numbers were to continue to decline through under-recruitment and/or re-allocation to the margin, and they failured to achieve successful bids for margin numbers, we could certainly see some schools seriously at risk in the next two to three years. But there are, as you can see, a number of variables at play.

Closure of any post-92 law school is not going to be good for the diversity of the legal education sector. Will a decline in student numbers impact diversity and social mobility in the legal profession? Worryingly, possibly not a lot. Most of the improvements in social mobility have  been achieved by the post-92 sector, and such research as is available suggests that the cost of vocational training, combined with the recruitment practices of (seemingly) a significant part of the profession, still leave the majority of those students seriously disadvantaged in the marketplace. The 2012 changes will certainly not make a tough job any easier.

The Bottom Line: brought to your desktop every day!

An advertising puff for SOS Connect in Legal Futures recently trumpets the value of its software to a newly merged provincial law firm. Apparently, one of the virtues of the system is that it can be set up automatically to send  ‘performance v budget’ figures to each fee-earner on system start-up. Now I’ve no reason to suspect the firm in question isn’t a lovely place to work, full of commmitted lawyers doing a great job. And I’m sure they’re by no means the first to come up with this idea. But I have to say it would never have occurred to me that something as simple as this could be such a great way to build a culture of “healthy rivalry and competition” (to quote from SOS’s copy). Or that such a culture was necessarily so important to a law firm. I’d be far too bothered that it might encourage fee-earners to objectify clients and regard them as just the next pay cheque, and rather worried about the effect on an underperforming colleague of being confronted by his disappearing bonus/non-promotion/ pending P45 everytime he switches on his PC. But then this is clearly why I’m not part of the cut and thrust of modern practice

The glorious 6th?

The significance of 6th October for the English legal profession diminished somewhat with the SRA’s announcement that it would not be in a position to launch its regulation of alternative business structures (ABSs) as planned. But kudos to the Council of Licensed Conveyancers (CLC), who have launched their own ABS licensing scheme in time for ‘ABS Day’. Legal Futures steals a march by profiling Premier Property Lawyers (PPL), one of the largest players in the conveyancing market, who have crossed the line to become the first licensed ABS. Tucked away in the same feature is the interesting snippet that the CLC are dealing with about 20 other “active enquiries” including some from existing solicitors’ firms considering changing regulator. Whether this just reflects dissatisfaction at the likely delay to SRA licensing arrangements (the SRA scheme is now scheduled to start accepting applications in December, with the first licenses being issued in the spring), or something more isn’t being made public, but, so far as I’m aware, this could become the first example of firms using the competition between regulators provisions of the Legal Services Act 2007 to adopt a new regulator of choice.

Rather less has been made of the fact that 6th October is also the date on which the SRA launches ‘outcomes-focused regulation’(OFR), with the publication of a new Handbook and Code of Conduct. The SRA Chief Executive, Anthony Townsend announced the launch by saying that

OFR marks our move away from our traditional, prescriptive approach in favour of one that is suited to the fast paced, modern and liberalised legal services market which provides greater flexibility to achieve the right outcomes for consumers.

The move to OFR is potentially very significant. The Legal Services Board has made no secret of its wish to see all approved regulators move to OFR, even though the model is relatively untested in the legal services market, and the other two largest regulators – BSB and ILEX PS - have so far been rather more cautious in their response to OFR. 

The anticipated benefits of OFR are that it offers a more flexible, proportionate, risk-based and principles-based regime that is better suited to the new mix of individual and entity-based regulation that ABSs, in particular, will require.  On the other hand, there are concerns that OFR will not just make decision-making in practice more difficult and, perhaps, more uncertain, but that it actually dilutes the ethical basis of professionalism, and creates new regulatory risks. In the only substantial academic piece published so far on OFR, Andy Boon pulls no punches:

It is not clear why, contrary to the views of many academic advocates of entity regulation, and key respondents to its consultation, the SRA is determined to turn its code of conduct into a manual for quality accreditation. There may be confusion between institutional and professional ethics (Greenwood and Hinings, 1996), which Freidson argues must each pursue different goals. Institutional ethics ‘serve the transcendent values of the discipline’ while professional ethics must ‘claim an independence from patron, state and public that is analogous to what is claimed by a religious congregation’ (1998; 219 and 221). In practical terms professional ethics represent concrete standards across the whole role, whereas institutional ethics are geared towards institutionalising processes in everyday work (Oost 2007). It would have been entirely possible to have retained the Solicitors Code of Conduct 2007 and issued guidance for inspection visits.

Anecdotally, there are many in the profession that are uncomfortable with the change, and unclear on what it means. There may still be work for the regulator here in winning hearts and minds. Moreover, now the regime is in place, it is important that independent research and evaluation is encouraged, to assess objectively  what the impacts of OFR actually are on the regulator, regulatees and consumers. So welcome to the (in)glorious 6th October 2011; for good or ill it promises the start of some interesting times for legal ethics and regulation!

Hemmings, super injunctions and super lies?

Having resisted commenting on the whole super injunction ferrago so far, the latest twist is hard to ignore. It will be recalled that MP John Hemmings used his position in Parliament to publicise information about cases in which the media, the parties and anyone else had been gagged using so-called ‘super injunctons’ – that is, interim orders which. Not all of these cases were about the very rich seeking to keep their bedroom antics off of the front page. One involved serious claims of sexual abuse made by a 7 year old child and her mother against the child’s father. Moreover, if the mother’s claims were true the case involved not only sexual abuse but rank incompetence and mendacity by social services and the legal profession. No wonder Mr Hemmings considered it in the public interest to highlight the attempt by Doncaster social services to use injunctive relief to keep their own failings under wraps. Except that Vicky Haigh’s quite extraordinary claims about her daughter’s abuse have now been judged by the High Court, for the third time, to be a complete fabrication – Re X (A Child) (2011). The full judgment has yet to be released, but in a press release from the Judicial and Tribunals media office, the President of the Family Division has stated that:

“The first judge found that allegations of sexual abuse made against the father of a young child were not just untrue but manufactured by the child’s mother, who then caused her daughter to repeat them. Because the mother was wholly incapable of fostering a relationship between her daughter and the child’s father, refused to accept the judge’s findings and continued to assert that the father was a paedophile, a second judge found that her mother had caused the child significant harm. The child’s mother is wholly unable to accept the court’s verdict and, with the misguided assistance of Elizabeth Watson [a private investigator and campaigner working with Vicky Haigh, who was gaoled by the court for contempt] has unlawfully and in breach of court orders put into the public domain via e-mail and the internet a series of unwarranted and scandalous allegations about the father and others. She has repeated the untruth that the father is a paedophile and – without a scintilla of evidence – has attacked the good faith of all the professionals who had had any contact with the case”.

Exceptionally the President decided that it was also in the interests of justice to disclose the names of the parents, though the name of the child was not disclosed:

“I have come to the conclusion that … I should … give a public judgment in which I explain, having read all the papers in the case, that I have reached the same conclusion as the two previous judges. These proceedings have had a serious effect on the life of the father and have threatened the stability of the child. Her mother’s actions are wholly contrary to her interests. The father is entitled to tell the world, and the world is entitled to know, that he is not a paedophile, that he has not sexually abused his daughter and that the allegations made against him are false.”

The Haigh case was widely taken up across the print and online media. A large number of websites, including victims united supported the mother’s cause, with (with a few honourable exceptions) all the fervour of a Mississippi lynch mob. A number of those disclosed the name of the mother. Others deliberately disclosed the father’s name. The impact of this whole sorry episode on father and daughter is hard to imagine, and the whole process will have done little for Vicky Haigh’s credibility, let alone her long term relationship with her daughter.

It is important that injunctions are no wider than the merits of the case demand and widespread use of so-called super injunctions would be deplorable (though as a number of commentators have observed, their use has been both less extensive than often portrayed – as the Neuberger Committee noted in its May 2011 report, partly because of the media confusion between genuine super injunctions and more limited anonymised injunctions – and has declined as clearer guidelines have been developed as regards their use and duration. But it is important to remember that the whole point of an injunction may be, as in this case, to protect the interests of the vulnerable, and to ensure that no one is subjected to trial by media rather than by due process of law – values that one would hope our legislators might respect. (And indeed Parliament’s own sub judice rules exist to enable Parliament to limit the scope of debate to avoid the appearance of political interference with the administration of justice). The case is a sobering reminder of our capacity to lose objectivity in the face of highly emotive claims of child abuse, and, one hopes, an equally sobering reminder to Mr Hemmings that with power comes responsibility.

Welcome to the new look

Hope you like it. Watch out for further developments soon…