Scottish Government

Chapter 4 Legal education and legal careers in Scotland

4. The Research Working Group was tasked with examining a number of specific issues that might affect competition in the legal services market. These included entry into legal education, professional training and the resulting structure of the profession in Scotland, covering both solicitors and advocates. This chapter is based upon data provided by the Law Society of Scotland, the Faculty of Advocates and the Education, Training and Lifelong Learning Department at the Scottish Executive. The chapter also draws on key studies of law students and law graduates in Scotland and across the UK, and briefly sets out the perspectives of key stakeholders on education and training considerations.

4.1 The issue of particular concern to the Group was whether there were any anti-competitive restrictions on entry to the profession of solicitor or advocate. It was clearly in the public interest to have an accessible and affordable legal profession who could deal with the full range of civil and criminal work in Scotland, and indeed beyond. It was equally necessary in the public interest that those who offered legal services should have an appropriate level of competence. As the Clementi Review Consultation Paper had noted, "the setting of [entry] standards requires careful judgement between setting the standard too high, and restricting entry, and setting the standard too low, and not maintaining proper levels of competency." ³⁴

4.2 It was important to see very recent trends in legal education in a wider context. There had been significant changes in the legal profession internationally, and in Scotland specifically, over the last half century. Deregulation, changes in business structures and communications, increased competition and specialisation, and increasing numbers of women graduating with law degrees had all been key drivers for change. ³⁵ There had also been an overall growth in the profession. That had led to on-going debate about how best to provide legal education and training. In 2004 the Law Society consulted on a draft Foundation Document for the future development of professional legal education and training ³⁶. A limited number of responses were received. The Society was at present working on drafting outcome statements for the different strands of the training process which would link into future development of the Foundation document. Consultation on the outcome statements would be carried out through an Education Forum to which interested parties were being invited. The Faculty of Advocates was also examining its entrance requirements.

Entering the profession

4.3 The standard route to entry to the solicitors' profession in Scotland was an ordinary or honours Bachelor of Laws degree from an accredited university, followed by a post graduate diploma in legal practice, followed by a two year period of professional training. During the latter period a Professional Competence Course and Test of Professional Competence was undertaken. That test was based on a series of logbooks which were maintained by the trainees and Quarterly Training Performance Reviews which were completed by the training solicitor in discussion with the trainees and then submitted to the Society for monitoring. A small proportion of entrants took a three year 'in-office' traineeship and the professional examinations set by the Law Society as an alternative to the law degree prior to the Diploma in Legal Practice and the two year post-Diploma traineeship.

Undergraduates

4.4 Following the inception of the full time LLB degree in the early 1960s the number of law graduates in Scotland rose to 300 in 1970 and 545 in 1979 before plateauing at that level for a decade. Gradually, numbers crept up again through the 1990s and by 2003 the total had reached approximately 700. With further LLB accredited courses coming on stream in the last two years, the total would increase again. The accreditation by the Law Society of Scotland of a further five law schools in the previous two years might suggest that entry to law schools was now relatively unrestricted in Scotland. The accreditation standards of the professional bodies were not subject to external regulation, however, and could have the potential to control aspects of the market for recruitment into the legal profession.

4.5 There were now 10 Scottish universities that offered LLB degrees : Aberdeen, Abertay, Dundee, Edinburgh, Glasgow, Strathclyde, Glasgow Caledonian, Napier, Stirling and Robert Gordon. (The Society had accredited Stirling University as a further LLB provider in April 2005). It was important to note that 2 year accelerated LLB courses were also available at a number of those universities and most of those LLB programmes had Honours level courses in combination with other subjects (often languages and business administration). Further a substantial number of undergraduate students were studying law and legal studies (outwith the LLB programmes) combined with languages, social policy, business administration and accountancy and European studies (among others) at Scottish Universities. While students graduating from these degrees would still require an LLB to become a practising solicitor, they could enter legal service markets as non-lawyer professionals.

4.6 A study of first year students by Hamilton in 2002 estimated that there were over 1,200 students embarking on an LLB in Scotland in that year, some of whom were part-time students. ³⁷ Further, as noted above, courses with a law component were also commonly available at Scottish Universities. Data from the Scottish Executive suggested there had also been an increase in the study of law across the board. ³⁸ A total of 5,721 students were studying law (either solely or as part of a university course) at either postgraduate or undergraduate level in 2002/2003.

4.7 The increase in law graduates might bring its own problems, however, since some within the profession believed that there were now too many law graduates. That view overlooked the fact that for more than a decade the LLB degree in Scotland had come to be seen as a liberal degree which equipped graduates for a wide range of careers. In recent years, approximately a quarter to a third of law graduates had not sought to take the Diploma or to enter the profession. Were the number of entrants to the profession to rise in line with the recent growth in LLB students however, such a rise might produce a situation where the current and prospective levels of remuneration of the profession would fall. In economic terms, and assuming that the proportion of LLB graduates who chose not to enter the profession did not increase, that might entail that the demand for places to study law could reduce when remuneration fell and as the number of solicitors increased. There was some debate, however, as to whether high remuneration was the main aim of those embarking upon the study of law. First year law student respondents in Hamilton's study cited a wide range of reasons for choosing to study law, though approximately three-quarters of them cited 'remuneration' as one reason for choosing to study law.

4.8 Recent concerns had been expressed in some quarters as to the length of time taken to qualify as a solicitor in Scotland and the cost burden on entrants to the profession. That school of thought had questioned the utility of an Honours degree for those choosing to enter the profession, as had effectively become the norm, raising the question as to whether an ordinary degree would be sufficient. However, the student desire to take an Honours degree also reflected the attraction of the added stimulus and sophistication of Honours level study, and it was difficult to see how students could be denied the right to choose to take an Honours degree, or how law firms could be prevented from recruiting Honours students. There was a general trend across a number of disciplines in Scottish Universities towards the attainment of Honours level degree courses.

4.9 There were some other interesting changes in the profile of law students. In Scotland, as in many other countries, the majority of law students were now female. In Hamilton's 2002/2003 survey of first year students in Scotland, 64% were female, and indeed the majority of entrants to law schools in Scotland had been female for more than a decade. That compared with less than 20% in 1970. Hamilton's study also noted that law students were a young population with more than 70% of law students identifying themselves as 18 years of age or younger. That differed in one university where a part-time LLB course was offered. The increasing proportion of females entering legal education in the 1980s and 1990s was now evident in the data on practising solicitors from the Law Society for Scotland, broken down by age (see table 5 below). Scottish Executive data also suggested that a higher proportion of females were studying law specifically, or as a component part of a first degree : 2,420 (61%) females compared to 1,528 males (39%). That data showed that those studying for postgraduate degrees in law were evenly split between males and females; 898 females (51%) and 875 (49%) males were defined as postgraduate law students in 2002/2003. For several years, however, the majority of students on the Diploma in Legal Practice had been female.

4.10 Although the growth in law school places might appear to have removed most entry barriers for those embarking on an LLB degree, the profile of law students in Scotland still suggested that there might be barriers to entry into the profession for certain groups in Scottish society. A recent Scottish Executive funded study on minority ethnic and social class composition of law students noted that despite a general increase in the number of students entering higher education, there seemed to be little evidence of an increase in the proportion of students from lower socio-economic groups, who remained significantly under-represented. ³⁹ Relative to all other subjects, law performed slightly worse in terms of proportions of students from lower socio-economic groups. As with Higher Education generally, the social class profile of applications and acceptances had not changed over the last few years, and there was thus no likelihood of a short-term change in the numbers of student in lower socio-economic groups (classed as C2DE) entering the profession. Almost half (47%) of students surveyed by Hamilton had parents defined as 'in management or the professions'. Further, 67% of students were not the first in their family to attend university.

4.11 The Scottish Executive research highlighted the lack of consensus about whether it was sufficient to simply inform and encourage applications from young people in disadvantaged groups, or whether a much clearer policy of 'lowering the bar' was necessary. That was clearly an issue for the higher education sector as a whole, not just law specifically, as it attempted to broaden access. The research highlighted the likely resistance to such a proposal in law driven by concerns about fairness and ensuring students would be adequately supported at the outset of their degrees. However, it was worth noting that the entry requirements for law already varied across Scotland. The impact of the recently accredited LLB courses on entry requirements and student profiles had yet to be established. There were initiatives underway to encourage more pupils from state schools in Scotland to apply to study for law and medicine. For example Edinburgh University's 'Pathways to the Professions' initiative involved an outreach programme for pupils and their families in partnership with relevant university faculties, the professional bodies and state schools. It offered advice, support for work experience and opportunities to shadow current students. The Law Society of Scotland was also active in providing information to school pupils about the legal education process. In 2005 the Society's Education and Training Department attended 8 large careers events and spoke informally to approximately 250 pupils plus parents and teachers. The Society also attended 16 individual schools where the audience included 450 pupils plus their parents and the Society had been involved in organising two further events - one in co-operation with the Edinburgh University Pathways Project for around 80 pupils. The Society's outreach in respect of the education system included schools from all parts of Scotland and applied to state schools as well as private schools.

4.12 The same research highlighted that both in the UK as a whole and in Scotland, minority ethnic groups were over-represented in higher education. The authors noted however that that probably masked considerable variation by specific ethnic group and by academic discipline. Analysis of UCAS data for Scotland suggested that, relative to all other subjects, law was about the same level as other disciplines in terms of minority ethnic representation. They also noted that the distinctive character of Scottish law degrees might be the most important factor in recruiting minority ethnic students. Most of those applying for and studying law in Scotland lived in Scotland. While most Asian law students interviewed as part of the study perceived legal education (and the legal profession more generally) as overwhelmingly white, respondents rarely felt that they had been the victim of overt discrimination.

4.13 The Law Society of England and Wales had launched its Diversity Access Scheme which aimed to 'help talented, committed people overcome obstacles to becoming a solicitor'. The Society noted that those obstacles might be due to disability, or social, educational, financial or family circumstances. The scheme had two strands; a vacation placement scheme and a scholarship scheme.

Competition issues

4.14 With regard to the LLB degree, the Diploma in Legal Practice and the period of "in-office" training, the OFT recognised that it could be difficult to find the balance between (a) requiring levels of training which were sufficient to ensure competence and (b) restricting entry by imposing unnecessarily stringent requirements. The OFT argued that there was a strong case for ensuring that decisions in that area were subject to an approval process and a system of independent regulatory oversight which were external to the professional body concerned and which could help to ensure that an appropriate balance was struck between what would sometimes be competing objectives.

4.15 Where decisions were taken in relation to qualification or training requirements, the OFT believed it was important that those requirements should be :

• transparent (avoiding for example excessive recourse to discretion without guidance as to how that discretion should be exercised);
• proportionate (the overall level of difficulty in relation to each category of applicant should be no more than necessary to ensure competence);
• non-discriminatory (the relative onerousness of requirements placed upon each category of applicant might be relevant for example); and
• based on objective standards.

Where failure to qualify would result in exclusion, the OFT emphasised the importance of having a proper appeals procedure in place.

4.16 The Law Society of Scotland was embarking upon a review of what should constitute the 'fit and proper' test for admission as a solicitor and noted that the Admission as Solicitor (Scotland) Regulations provided for appeal to the Court of Session following a Council decision in an admissions case.

Diploma in Legal Practice

4.17 After completion of the LLB Degree or professional examinations, all those intending to become solicitors were required to take the Diploma in Legal Practice. This course, which was of 26 weeks duration, could be taken at Aberdeen, Dundee, Edinburgh and Robert Gordon Universities, and the Glasgow Graduate School of Law which was run jointly by the Universities of Strathclyde and Glasgow. The cost of this skills-based course to the students was partially offset by the presence of 300 Diploma fees grants. Despite a recent growth in capacity to approximately 500 Diploma places in Scotland, competition for Diploma places might become tighter when the number of those graduating with a first degree in law increased even further. The Law Society estimated that 580 diploma places would be available in the academic year 2005/2006. Capacity in the Diploma had hitherto been a product of demand and the resource constraints of existing providers. In recent years only about 65% of law graduates had sought to take the Diploma, but there were signs that for the first time demand for Diploma places (particularly with the advent of graduates from the new law schools) might be about to outstrip supply.

4.18 As Figure 1 below shows, the number of diploma graduates had fluctuated slightly during the 1990s (after its introduction in 1981). In 2004 the number was 511, the highest since 1995 (516). By the late 1990s, a lesser proportion of law graduates was going on to take the diploma - 68% compared to 80% in the early 1990s. A quota for Diploma grants was introduced by the government in the 1980s. This, amongst other factors, lowered the demand for Diploma places in the late 80s and early 90s to a level well below the number of Diploma places available in Scotland. That might be changing, however, since recent research conducted with first year law students suggested that at the outset of their legal education, most respondents perceived the LLB as a vocational course and intended to enter the legal profession. 76% specifically stated their intention to be to study for the Diploma after graduating. The second sweep of the survey (among second year students) showed that a similar, if slightly higher, proportion of students (compared with the first year survey) still intended to undertake the Diploma in Legal Practice immediately after graduation (80% of full time undergraduates, 87% of graduate entrants and 92% of part time undergraduates). ⁴⁰ However, it should be noted that the response rate in the second survey was considerably lower. Student preferences for post-Diploma traineeships (at this stage) were similar across both surveys, with most students willing to consider a high street or large commercial firm traineeship but fewer willing to consider a legal aid or rural traineeship.

FIGURE 1 Number of Diploma graduates 1993-2004
(Source: Law Society of Scotland)

4.19 The data suggested that if interest in entering the profession held up amongst undergraduates then a smaller proportion of graduates who wished to study for the Diploma would be able to do so, unless there was an increase in the number of Diploma courses, or places on the current courses. There were signs that unless the universities which had recently been accredited to teach LLB degrees received some reassurance that places would be made available for their graduates on the existing Diploma courses, they would apply to the Law Society for the accreditation of their own Diploma course. In either case the overall number of Diploma places in Scotland was likely to increase. If there was an attempt to impose a limit in the supply of Diploma places in response to concerns over the growing number of law graduates however, such a move might constitute an anti-competitive restriction. The OFT agreed that there should be no attempt to seek to limit the supply of Diploma places and noted that realistic career advice might be helpful at an early stage. The Law Society of Scotland provided careers advice at different stages of legal education, highlighting that the LLB and the subsequent Diploma and trainee stages were competitive processes. For example the Society offered to send a staff member to all Scottish Universities to speak to undergraduates each year and (where relevant) Diploma students at least twice a year to discuss those issues.

Post diploma training contracts

4.20 After successful completion of the Degree and Diploma, all intending solicitors were required to serve a two year post-Diploma training contract with a practising solicitor in Scotland. Traditionally, the traineeship and its predecessor, the apprenticeship, had been the major bottleneck for those seeking entry to the legal profession in Scotland. That remained the case, although demand for training places had fluctuated over the last twenty years. There were signs however that the 400 or so traineeships per year that had been becoming available in recent years, might become insufficient to meet demand from Diploma graduates for training places. It was also important to note that that figure might hide changes in the types of traineeships available. For example, there appeared to have been a substantial reduction in the number of training places in criminal firms (which might be in part due to the introduction of fixed payments), while concurrently there appeared to be great interest among qualified lawyers in working for organisations such as the Public Defence Solicitors' Office and the Crown Office. To look in more detail at the profile of traineeships over time would require manual checking of paper-based information. Trainee solicitors were normally paid by their employers at a mutually agreed rate, based on salary scales recommended by the Law Society of Scotland for post-Diploma trainees. Trainees in some of the largest firms would receive significantly more than the recommended rates, while some working in local authorities would be paid according to organisational pay scales. Some trainees were paid below the recommended scales. After completing the first year of training, a trainee could, subject to satisfactory progress, apply to be admitted as a solicitor under the relevant regulations ⁴¹.

4.21 As Figure 2 below shows, the number of training contracts commenced increased generally since 1997, with some fluctuations. The number commenced in 2004 was 451, compared to 374 in 1997. Thus, in 2004, the number of training contracts commenced was slightly lower than the number of diploma graduates. However, those two figures did not necessarily tie up neatly because some graduates might actually commence their traineeship in the same calendar year.

FIGURE 2 Number of training contracts commenced 1997-2004
(Source: Law Society of Scotland)

Number and size of firms in Scotland

4.22 The number of traineeships available should, at least to some extent, be related to the number and size of firms operating in Scotland. According to the most recent data available from the Law Society of Scotland there were 1,255 firms in Scotland. A total of 472 (38%) of these firms were based in Glasgow and Edinburgh. Sole practitioners accounted for 45% of legal firms in Scotland and firms with 2-4 partners accounted for a further 39%. The number of firms in Scotland appeared to have been relatively stable over the previous 10 years (Table 2), with an 8% increase in the number of firms between 1994 and 2004. However, there had been a substantial increase in the number of practising certificates in firms with 10+ partners, even though the number of such firms had dropped. Law Society of Scotland data showed that the number of practising certificates in firms with 20+ partners had increased from 806 in 1994 to 2,139 in 2004.

Table 2: Number of legal firms in Scotland by size and % of total (1994-2004)
Source: Law Society of Scotland

NB All data mid year, with the exception of 2004 (data as of 6th Jan 2004)

4.23 Table 3 shows the number of trainees in firms between 1999-2002. The number had fluctuated over the 4 year period. There had been a steady increase in the number of trainees in firms with 20 or more partners. As noted above, there had been a substantial increase in the number of practising certificates in firms with 10+ partners, even though the number of firms of this size had dropped. While firms with 1-4 partners represented approximately 85% of total firms in Scotland over recent years, fewer than 20% of trainees were working in those firms in 2001 and 2002. That might suggest that there were fewer young trainees in rural-based firms and in firms undertaking criminal legal aid work (which tended to be concentrated in small firms). To establish the nature of work conducted by trainees in firms of every size, further work would need to be completed to match electronic and paper records. Further research might also be required (and was now planned) to look in detail at the recruitment and retention practices and experiences of firms in Scotland.

4.24 In 2002 the majority of trainees were working in firms with either more than twenty partners (165 or 45% of trainees) or between 11 and 20 partners (66 or 18% of trainees) - just less than two thirds of trainees overall. These firms were predominantly located in Glasgow and Edinburgh. Those trainees in 2002 located within firms with 5 or fewer partners tended to be in locations other than Glasgow and Edinburgh ('other areas') - 50 trainees out of the 81 in these firms (62%) were located in 'other areas'. The data could be disaggregated by Glasgow, Edinburgh and other areas only. Aberdeen and Dundee were included in 'other areas'.

Table 3: Number of trainees in firms 1999-2002
Source: Law Society of Scotland

4.25 As already mentioned, the excess demand for Diploma and training places could be seen from an economic perspective as suggesting that prospective entrants to the profession believed that prospective remuneration within the solicitors' profession more than repaid the investment in training. It might of course, be possible that those prospective entrants were misinformed and that the attractiveness of a profession to potential entrants only adjusted to reality with a significant time lag. That suggested that further evidence on salary prospects on qualification might clarify the situation.

4.26 The Law Society of Scotland had been seeking to enhance the quality of the overall training experience in the post-Diploma phase: firstly, by increasing the obligations on providers of in-office training and secondly by establishing a Professional Competence Course in 2002 which was compulsory for all trainees ⁴². The Professional Competence Course consisted of 36 hours of core modules and 18 hours of elective modules and had to be attended at any time between the 6 and the 18 month stage of the traineeship. The fee for the course was about £1,000 and in most cases was being paid by the firms rather than the trainees. There was a possibility that the enhanced training and supervision requirements, combined with the cost and "disruption" associated with the professional competence course, might lead to some smaller firms ceasing to offer traineeships. That was being explored in research which had commenced in 2005.

Membership of the Law Society of Scotland

4.27 As of 31 October 2004 the number of members of the Law Society of Scotland holding practising certificates was 9,443. That number had been rising steadily since 2001. The number of members not holding practising certificates in 2004 was 639, bringing the total to 10,082. ⁴³ It was possible to examine the sector of the law profession which those with practising certificates worked in (Table 4). Just under three-quarters of those with practising certificates were in private practice between 2001 and 2004, while a further 13-14% worked either for central or local government. Only 2% of those with practising certificates between 2001 and 2004 were not employed as solicitors.

Table 4: Occupations of members of Law Society of Scotland holding practising certificates
(Source: Law Society of Scotland)

4.28 The proportion of women holding practising certificates had increased substantially over recent years. In 2004 41% of those holding practising certificates were female, though that proportion increased substantially in the younger female cohorts (Table 5). Among those under 30 years, 61% were female. That reflected the recent profile of law graduates from Scottish universities.

Table 5: Practising certificate holders by age and gender, 2004
Source: Law Society of Scotland

4.29 Despite the increasing number of females entering the legal profession, much lower proportions of females than males were partners in firms (see table 6). In the 30-39 year age band onwards, fewer females had partner status. However, amongst the under 30s (which represented small numbers of the total) there were almost equal numbers of males and females. The Law Society of Scotland commissioned research into the position of women in the legal profession in Scotland which examined in more detail the question of women obtaining proportionately fewer senior positions in practice. The research was published in November 2005 ⁴⁴.

Table 6: Partners holding practising certificates by age and gender, 2004
Source: Law Society of Scotland

Career aspirations

4.30 There had been less research on career aspirations and progression of legal graduates in Scotland than in England and Wales. In an attempt to address questions about the aspirations, development and career progression of law students, the Law Society of England and Wales had set up and supported a graduate cohort survey throughout the 1990s. At that stage the original cohort was at the two year post-qualifying stage. Detailed findings from various sweeps of the cohort study could be downloaded at the Law Society publication webpage at http://www.lawsociety.org.uk /.

4.31 The sixth sweep of the survey (the last published) ⁴⁵ was conducted at the point where respondents were entering the workplace. At that time the authors noted that solicitors were then engaged in a range of quite diverse activities and specialisms. ⁴⁶ Increasing numbers of lawyers were employed in the public sector at the same time as an increase in the size and wealth of commercial firms. The difference between those types of work and the high street practitioner serving local communities was particularly marked. The sixth sweep of the study showed that the cohort who made it through their legal education and training carried out a very wide range of work. However, that work was often in quite specialised fields. The authors concluded that that could lead to a degree of occupational immobility for legal professionals. There was evidence that having secured a place at a law firm, many young graduates chose to remain there. Nearly two-thirds of newly qualified solicitors remained in the organisation that they had trained in the year after qualification.

4.32 The possibility of movement between the private and public sector, and between city and provincial firms, did appear to exist and might be realistic for some south of the border. There was a more strongly expressed desire among respondents to move from the public sector to the private sector which might be explained, at least in part, by the lower rates of post-qualification pay in the public sector. However, at that stage in graduate careers such moves were not evident. The authors also concluded at that stage that while the distribution of respondents did to some degree reflect practical, social and intellectual choices, there remained a failure of opportunity equality.

4.33 Overall, the study found that while a large proportion of trainees went on to become employed solicitors, there were some groups who appeared to be disadvantaged at early stages of the career pathway; those groups included minority ethnic groups, those from less privileged backgrounds, those who attended what were described as 'new' universities and (to a lesser extent) women. The stages at which those groups appeared to be most disadvantaged were at the point where they were seeking training contracts.

4.34 There was less of that type of evidence on career aspirations, progression, choices and pathways in Scotland. However, research on recruitment and retention of law graduates and post-graduates in Scotland commenced in 2005. That was a jointly funded exercise between the Scottish Executive, the Scottish Legal Aid Board and the Law Society of Scotland. The driver for that research had been concern about the future supply of practitioners in some legal markets, particularly legal aid work and in some (more rural) areas of Scotland.

Entering the profession of advocate

4.35 The number of practising advocates had increased markedly over the last decade and there were now approximately 470 practising advocates in Scotland. While advocates were admitted by the Court, and changes to the admission requirements had to be approved by the Lord President, the Court delegated examination of the suitability of intrants to the Faculty of Advocates.

4.36 Admission required either an Honours degree (at 2:2 level or above) or an ordinary degree with distinction, though the Dean had power in exceptional circumstances to exempt an applicant from those requirements, having regard inter alia to such objective evidence of intellectual ability as the applicant might produce. Intrants normally also had to have completed the Diploma in Legal Practice and undergone a period of training in a solicitor's office. At present many intrants had in fact practised as solicitors before matriculating although that was not required. In addition, intrants were required to take the Faculty of Advocates five week Foundation Course and to undertake a period of pupillage (during which they would attend a number of skills training courses), totalling a further five weeks of study.

4.37 Reform of the Faculty's entrance requirements was currently under active consideration. The requirement for a 2.2 Honours degree was being revisited. The proposals had still to be finalised and would require to be adopted by the Faculty and approved by the Lord President.

4.38 No period of pupillage could be less than 6 months and a pupil-master did not make any payment to the pupil (or devil), though there was no Faculty rule which actually prohibited payment. The absence of remuneration might act as a barrier to entry for those of limited means. The Faculty had from time to time considered whether pupils should be paid a salary, but had decided against remuneration, chiefly on the grounds that it had no control of the number of intrants and would find it impossible to budget for the payment of salaries to an unrestricted number of pupils . The Faculty did however offer some annual scholarships to intrants who intended to practise at the Scottish Bar. The size and number of scholarship awards was at the discretion of the Scholarship Committee, after consideration of the number and quality of applicants as well as the funds available in any given year.

4.39 The Faculty suggested that any consideration of the question of whether the absence of payment to pupils constituted a barrier to entry had to have regard to the nature of pupillage, which was different from an employment relationship. Pupils did not provide services for the benefit of the pupil-master - rather, the relationship was directed to providing the pupil with experience, education and training. Typically, for example, although a pupil would have a principal pupil-master, the pupil-master would arrange for the pupil to spend time during the period of pupillage with other advocates with a view to exposing the pupil to different aspects of practice at the bar.

4.40 It would also be relevant to have regard to the relatively low start-up costs of becoming an advocate in Scotland as compared with taking up other forms of self-employment. Any intrant who completed pupillage and fulfilled the other entrance requirements was entitled to admission as an advocate and to enter practice at the bar with full access to the Advocate's Library and clerking services on an equal basis with all other advocates. The Faculty as a whole supported the Foundation Course (which was taught very largely by experienced practitioners for no fee) and other skills courses which were provided to intrants free of charge, while individual pupil-masters spent time in the training of pupils. The effect of any requirement for pupil-masters to pay pupils on the number of experienced advocates who would be willing to take pupils, as well as on the nature of pupillage, would have to be considered in addressing this issue.

Competition issues

4.41 The OFT recognised that it was difficult to draw the line between (a) requiring levels of training which were sufficient to ensure competence and (b) restricting entry by imposing unnecessarily stringent requirements. The OFT believed nonetheless that there was a strong case for ensuring that decisions in that area were subject to an approval process in which the objectives of consumer protection and the administration of justice were explicitly balanced against those of competition. In addition, the OFT considered that the availability of a partnership structure might bring improvements in the arrangements, financial and otherwise, for developing future advocates.

4.42 With regard to any examination and qualification procedures that the Faculty operated either in relation to the various categories of intrants (those who had qualified as solicitors in Scotland, those who were qualified in England, Northern Ireland or elsewhere), it would be important in the OFT's view to ensure that requirements were transparent, proportionate, non-discriminatory and based in objective standards (as with entry into the solicitor's profession - see above).

Practising as a solicitor advocate

4.43 Under section 25A of the Law Reform (Miscellaneous Provisions) Scotland Act 1990 suitably qualified solicitors in Scotland could for the first time apply to be granted rights of audience in the Supreme Courts in Scotland as well as in the House of Lords and the Judicial Committee of the Privy Council (see chapter 2).

4.44 In Scotland, any solicitor who wished to acquire extended rights of audience had to satisfy the Council of the Law Society of Scotland about both their professional conduct and reputation and their competency in the practice and procedure of the Supreme Courts. In addition they required to pass an examination. Whilst it was expected that applicants would have 5 years experience, that somewhat artificial bar was removed in 2003 and all potential candidates could apply to the Society. The initial cost of the application was presently set at £250 or £400 for both civil and criminal rights. If successful the prospective candidate would require to attend a Training/Assessment Course. There were separate courses for civil and criminal candidates, both operating in general terms on the basis of continuous assessment. The cost of this course was presently around £1,500, but varied depending upon numbers.

4.45 Membership of the Society of Solicitor Advocates was open to all solicitor advocates in Scotland and the Society represented solicitors advocates who had gained rights of audience in the civil or criminal courts or in both.

Conclusions

4.46 The legal profession had undergone significant change in recent decades: globalisation, changes in business practice and technology, increased competition, greater specialisation and increasing numbers of women qualifying had all affected the profession.

4.47 The numbers entering undergraduate law course in Scotland would continue to rise substantially, in most part due to the accreditation of new LLB courses at Scottish Universities.

4.48 There was some evidence of social barriers to entry into the legal profession; in particular there seemed to be little evidence of an increase in the proportion of students from lower socio-economic groups, who remained significantly under-represented on law courses. That was a concern for higher education generally.

4.49 Historically, the principal bottleneck in entering the profession had been in securing an apprenticeship or traineeship. Currently there were signs that another bottleneck might be emerging at the stage before entering the diploma. Demand for places was beginning to outstrip supply and competition for places would become fiercer as the new LLB students graduated. There were signs that the number of diploma places would increase. Any attempt to limit the number of diploma places could be construed as an anti-competitive practice.

4.50 The data showed that there were slightly fewer registered training places than diploma places, but the gap was relatively small. However, with an increase in diploma places, and graduates, that was likely to remain the main 'bottleneck' in the education and training process, since the number of training places available depended to a large extent on market forces.

4.51 The majority of trainees were working in firms with 11 or more partners. That impacted upon the training and experiences of trainees. There were concerns that relatively few trainees would be experiencing work in firms who relied on legally aided work, and in particular areas of law such as family law (which tended to be the domain of smaller firms). Ultimately that would affect the supply of legal professionals to undertake this work.

4.52 Increasingly women were pursuing the study of law. However, despite the increasing number of females entering the legal profession, much lower proportions of females than males were partners in firms. The Law Society of Scotland had published joint research with the Equal Opportunities Commission which explored issues around gender and career progression within the legal profession (see footnote 44).

4.53 Reform of the Faculty's entrance requirements was under active consideration. A period of pupillage of at least 6 months was required and a master did not make any payment to his pupil. The absence of remuneration during a period of up to 9 months unpaid devilling might act as a barrier to entry to the profession for those of limited means. The Faculty observed however that the nature of pupillage was different from an employment relationship, and that the start-up costs of practice as an advocate were low compared with other forms of self-employment.

4.54 Any solicitor who wished to acquire extended rights of audience as a solicitor advocate had to satisfy the Council of the Law Society of Scotland about both their professional conduct and reputation and their competency in the practice and procedure of the Supreme Courts. In addition they required to pass an examination. Whilst it was expected presently that applicants would have 5 years experience, that bar was due to be removed. Further discussion of rights of audience is set out in Chapter 12.

4.55 The OFT emphasised that where decisions were taken in relation to qualification or training requirements it was important that those requirements should be transparent, proportionate, non-discriminatory and based on objective standards. In the OFT's view there had been no systematic examination of whether that was the case in Scotland, and whether the current training and education system systematically ensured that a supply of appropriately trained professionals was available to cover all areas of law. The Law Society of Scotland disagreed with the latter view.