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.

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.

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!

“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.

The issue of sources led us neatly into the second presentation of the day, by Jonathan Ercanbrack (also SOAS) explaining what was happening on the UKCLE-funded Law of Islamic Finance Bibliography Project. Jonathan’s presentation took us through some of the particular resource problems for Islamic Law studies and the limitations of conventional bibliographies and bibliographic tools. This project by contrast, is developing what will ultimately be a public resource, using the new multi-lingual functionality being built-in to the web-based (open source) Zotero bibliographic application. Speaking personally, Zotero has rapidly become my app of choice for building my own reference libraries, and it was great to see it’s functionality being used in this way.

Finally, we had a group discussion about the next steps for this Special Interest Group, post-UKCLE. It was encouraging to see the level of support from colleagues, and I feel confident that we have created something that will have an independent future. Plans for a steering group are being put in place, and hopefully a conference in 2012. Watch this space!

Westminster and Warwick – two universities I’ve worked in, are very different law schools, but their students have tended to share the same aspiration for corporate work at a magic circle firm – ‘Big Law’.
Why? Money and status are undoubtedly significant motivations for at least some, but we also know that those kinds of aspirations are not necessarily the ones that will keep you walking into the office with a spring in your step ten years down the line. The essence of Tim’s post is a plea to consider what is going to bring the gleam to your eye or a smile to your face – to put it more academically, (in American legal ethicist William Simon’s words) what will have you experience what you do as ‘meaningful work’. That’s not necessarily an easy question to answer when you’re in your late teens or early twenties, with limited experience of any working environment, and its not just a question to ask if you’re thinking about ‘Big Law’. it’s worth asking whatever you might consider doing.

I don’t think, even in these days of debt and under-employment, its romantic to want your work to be an extension of your self-expression. I’m clear it makes a difference. It’s certainly a big part of why I chose academia over practice, though I probably wouldn’t have phrased it that way when I was making those decisions at 22 or 23! While there are plenty of lawyers who are satisfied with what they do, research shows that there are also those, particularly 5-7 years PQE, who are pretty miserable, but feel trapped by the salary, or the narrow niche work they are doing.

Julian Summerhayes (a solicitor turned business consultant and coach) in his response to Tim’s post, strongly endorses that same view, as I think would many of the lawyers I know:

‘If I was starting out now in law, I would ask myself one basic question: “Why law [as opposed to any other career]?”

What is it that is so special about buying and selling a house, preparing a will or even the more juicy end of the market? If all I could rely on in answering the question was the money – I wish a few more people were honest enough to say that – then forget it.

Go do something that inspires you. But if you see yourself contributing in a much wider context – doing good if that is not too altruistic – then consider if the partnership model (as currently constituted) will allow for that. Don’t just focus on the brand name of the firm but think about the clients, sectors and pro bono work they do. What really does float your boat? Can you marry it up with a career in law?’

Changes to the legal services market being ushered in by the Legal Services Act are also changing the employment game. I suspect that opportunities to train as a solicitor or barrister in traditional private practice will, as a result, continue to decline gradually, whilst opportunities to work as a paralegal or employed lawyer in other business settings will expand. And remember, this is in a context where less than 50% of law graduates currently are progressing to work in the legal profession. Clearly there are opportunities and threats here. Be prepared to be creative and flexible; look outside the box of traditional practice. In short, think about what really matters to you, you’re core values if you like, and what kind of work would be alligned with those values.

Critics have tended to focus on two issues so far. First, just how much teaching these luminaries will do is, of course, a moot point, and Dawkins’ observation in the Guardian that “Professor Grayling invited me to join the professoriate and give some lectures” does seem to suggest that he may not be rolling up to offer weekly tutorials in traditional Oxbridge fashion. I’m not exactly expecting Dworkin to be brushing up first years contract law either. But a second charge being levelled at New College, that it has been guilty of plagiarism in “ripping off” London University International Programme syllabi, does seem misconceived. The International Programme is of course the UoL’s old External Programme with a shiny new name. It has been around a long time, and has acquired some pretty impressive alumni over that time. These UoL courses are taught by colleges all around the world, and none of them have a formalised link with the University of London as such (though I know from my own experience as an external examiner on the External Law Programme – as it then was – that the University has in recent years put a lot of effort into outreach and developing support for the colleges offering its awards). Some of these external colleges are very good at what they do… and others are not. And that is a concern, it can be a bit of a lottery.

There is no formal quality assessment by the University of London of the teaching or learning resources provided by the external colleges, nor unless New College opens its doors to QAA, will it have to submit to the quality assessment regime expected of UK public universities. Some might say that’s no bad thing, but it begs the question as to what New College itself will do to assure prospective students that it will provide the elite education promised.
There is one remaining external check on standards: degree papers will be externally assessed. That separation between teaching and assessment may be good news for the professoriate, who are thereby exempted from the annoyance of the annual marking ritual, but it may be less good news for the students of New College. It can make it a very demanding way to study for a degree, and, certainly as regards the LLB, graduation rates and the proportion of good honours degrees, both tend to be lower than on the UoL’s internal programmes. This reflects a range of factors – student entry qualifications (the International Programme minimum standard is significantly lower than the grades needed to get into an internal programme), often a relative absence of formative assessment and preparation for university learning, variable access to learning resources, and variable teaching quality. An external degree requires teachers with a broad understanding of their subject, who are effective at teaching to a syllabus that is not of their own design. The separation of teaching and assessment can also encourage teachers and students to adopt a risk-averse, assessment-driven approach that can emphasise coverage over deep learning. Educationally, none of these are insurmountable, but I’m not sure its where I would want to start in developing a system of elite education. And if nothing else serves to damn the project, Boris Johnson’s endorsement in today’s Torygraph that New College “is a simply brilliant idea” for taking-on “the cream of the [Oxbridge] rejects” mightjust do the trick.

No doubt that it is going to be a big job. Our remit is to look at the changes that are shaping the legal services market in the wake of the Legal Services Act 2007, and assess their implications for future legal education and training needs. We are currently still involved in a lot of the planning and ‘backroom’ stuff that a project on this scale requires, but we are aiming to start research ‘proper’ in July. We are scheduled to complete the whole project in November 2012. A lot of the research will involve traditional empirical analysis of qualitative and quantitative data, but we are also planning to make extensive use of technology to support and open up the project. There will be a dedicated website, which, as a research team, we want to use as a tool to encourage participation and engagement with what we’re doing. I hope we can make it a different, more inclusive way of doing a review, which given both the consumer dimension, and the importance of the equality and diversity agenda, is important.

We have a top-flight team of researchers engaged in the project – Avrom Sherr (IALS, London), Paul Maharg (Northumbria), and Jane Ching (NTU – pictured here with me, Dame Janet Gaymer and Sir Mark Potter, the Co-Chairs of the Review Consultation Steering Panel), are the other institutional leads. We also have Chris Decker (Oxford Regulatory Policy Institute & CSLS), Rob Wilson (Warwick Institute for Employment Research) and the incomparable Richard Susskind as consultants. I’m sure there will be those who don’t think we are quite the right people for the job. I hear murmurs already from some in the profession that we are too academic, and from some academics that we are too close to the profession! Maybe that level of contradiction at least indicates that we are what we’re supposed to be: independent.