Why it matters that only the rich can become lawyers

This post was originally published here as a guest post on betternation.org, one of Scotland’s leading political blogs.

Why it matters that only the rich can become lawyers

Great Window, Parliament Hall. By Hockadilly. Some rights reserved (CC BY-NC 2.0)A stained glass window dominates Parliament Hall in Edinburgh, once the seat of the Scottish Parliament, now the hub of the Scottish courts. It depicts the inauguration of the College of Justice and the Court of Session by King James V in 1532. But the link between power, the establishment and the legal system is more than symbolic.

In his provocatively titled critique of land ownership in Scotland, “The Poor Had No Lawyers”, Andy Wightman argues that the Scottish legal profession has been complicit in a system that allowed the rich to acquire and retain much of Scotland’s land whilst the rights and interests of the poor were ignored or dismissed.

Whether or not Wightman’s analysis is right, it is undeniable that the Scottish legal profession was historically the preserve of the privileged: only they could afford the expensive education required. And it is hardly a flight of fancy to suggest that a legal profession overwhelmingly drawn from one part of society may mean a legal system that cannot fairly balance the needs and interests of all.

Like any human activity, the operation of the legal system inevitably reflects the approach, attitudes and preferences of those who operate it. And, as Wightman’s book exemplifies, the legal system has an unique role in shaping and regulating our society. Through it, rights are enforced, disputed facts are adjudicated, fault is attributed and the power of the state to impose settlements is exercised. The legal system determines what is ‘reasonable’ or ‘fair’ or ‘just’ for employers and employees; landlords and tenants; companies and consumers; the police and the public.

Secondly, whilst politicians may formulate law, it is our judiciary – selected from the ranks of the legal profession – who interpret and apply it. They preside over trials of the accused and sentence the convicted. In our common law system, they are entrusted with adapting the law to changes in society.

Finally, the legal system is not just of practical importance. The principles that guarantee democracy and the rule of law make it a constitutional actor in its own right. It adjudicates disputes between the state and the individual and determines the legality and justice of the acts of government. For Scotland, it defines the limits of the elected parliament’s power.

These factors demonstrate the importance a legal system that justly adjudicates between competing interests within society. And until the legal profession is open to all on their basis of aptitude for the legal practice, whatever their socio-economic background, the legal system will never escape the suspicion that it inherently favours the portion of society by which it is run.

Sadly, the dominance of the legal profession by the privileged is not restricted to history. A 2006 survey of Scottish solicitors showed just how few lawyers came from families whose parents were not professionals of one sort or another. Thanks to the scrapping of tuition fees, the availability of student loans and the efforts of university outreach programmes, access to law as an undergraduate degree is now wider than ever. But a more diverse profession is not being created: graduates entering legal training as recently as 2010 were much more likely than those starting other postgraduate courses to be from well-off families.

As in reformation days, it is the cost of education that is the stumbling block. Law graduates now need a postgraduate qualification before they can become trainee solicitors. The government used to support this course, the Diploma in Professional Legal Practice (DPLP), with a grant to cover the fees and another, means-tested, grant to assist with living costs. But rising costs and a capped fees award – now a loan – mean only half the actual fees are covered. The maintenance grant likewise failed to keep pace with inflation and was scrapped entirely two years ago. Consequently, law graduates must now find around£9,000 to fund their diploma. Most start with no guarantee of a job at the end so, even for those with financial security, it is a massive gamble. For the less privileged, it is an impossibility.

In the longer-term, there must be reform of legal training to eliminate this financial hurdle. But such radical overhaul will take time, even if started now. The current system developed with the acquiescence of governments of all colours and remains part-subsidised by the state. Until reform is completed, the Scottish Government bears a moral and political responsibility to counter the increasing inequity in access to the legal profession.

Fortunately, a simple and effective solution exists: extend to DPLP students the same maintenance loans available to undergraduates. This is already done for equivalent courses in other professions and would reduce the personal contribution to a level achievable by all students.

But the Government’s response so far has been to shrug its shoulders. On a practical level, it argues that a recent change to the fees award has widened access to the profession. It has not. The reform does nothing for fairer access whilst meaning more government money goes to those who could afford to pay anyway. The government also advances a political argument: that fair access to the legal profession is not a priority. Speaking in the Scottish Parliament, the Cabinet Secretary for Education said:

“We do not support similar schemes for other professions in which employment is mainly private, such as the architecture and veterinary professions, and I do not think that we should do so in the case of the legal profession.”

Mr Russell’s choice of comparison is strange: both architecture and vet students in fact already receive extended student support arguably more generous than that needed to ensure less privileged law students can enter the legal profession.

But the underlying suggestion is that the legal profession is just another profession; that entrenched privilege matters no more amongst lawyers than, to use Mr Russell’s comparators, among those who design our houses or neuter our pets. This demonstrates a dangerously impoverished understanding of the role of the legal profession in our society.

Fair access to the legal profession does matter. It matters to creating a legal system operated and shaped in a way that meets the needs of all our society. It matters to creating a judiciary that fully understands the society it judges. And it matters to ensuring the levers and safeguards of constitutional power are operated by those who legitimately represent the society they serve.

Fair access to the legal profession matters. It should matter to the Scottish Government too.

Law, Architecture and Veterinary Professions: Student Support Compared

In his answer during themed questions in the Scottish Parliament on 31 May, Mike Russell said, of the suggestion that DPLP students should be made eligible for student maintenance loans:

We do not support similar schemes for other professions in which employment is mainly private, such as the architecture and veterinary professions, and I do not think that we should do so in the case of the legal profession.

On closer analysis, Mr Russell’s assertion about support for architecture and veterinary medicine students is wrong. As described below, both architecture and veterinary medicine do both benefit from extensions to the normal level of undergraduate support, presumably because qualification for these professions requires more than a standard four-year degree. In fact, these routes to professional qualification would still be more generously supported than law, even if the Scottish Government did agree to extend student maintenance loans to DPLP students.  And despite Mr Russell’s denials, his fellow minsters are elsewhere happy to take credit for their support for access to the veterinary profession and to commit itself to its continuance.

Architecture

As described on the SAAS website, architecture students benefit from up to six years of living costs support on the same terms as undergraduates. This includes the four years of their undergraduate degree, one year of the postgraduate diploma required to gain exemption from the professional examinations (the RIBA Part 2 exams), and one year of vocational training in an architectural practice.  The situation may be complicated by the fact that some Universities (such as Edinburgh) only offer 2 year postgraduate courses which may not attract support.  However, other institutions (such as Strathclyde) do offer a one year course.  In any event, it is clear in principle that government is willing to extend additional funding to architecture students.

There is a clear comparison between an architect’s postgraduate diploma and the Diploma in Professional Legal Practice (DPLP), so architecture represents a direct example of where students studying for relevant postgraduate professional qualifications are supported with undergraduate student loans.

Veterinary Medicine

Qualification for the veterinary profession is arranged differently from either law or architecture but also serves as an example where student support continues for longer than the standard four years of undergraduate support. In veterinary medicine, there is no requirement for a postgraduate qualification to enter the profession, instead the qualifying undergraduate degree lasts for five years, rather than four. Veterinary medicine students remain fully eligible for student support for this extra year of their undergraduate degree, meaning they benefit from five years of student maintenance loan.

The fact that all five years of the veterinary medicine qualification is classified as an undergraduate degree also has significant implications for fee costs. Scottish students have their fees for the fifth year of their study met by the government. The true cost of a year of veterinary study, as reflected in the fees for students undertaking veterinary medicine as a second degree, is well over £20,000. The government’s approach to funding veterinary qualifications shelters students from this cost.

Other Professions

Other professions supported by the government with extended living costs support are:

  • Medicine and Dentistry. Up to five years on undergraduate terms including one optional year not required for professional qualification, remaining years with living costs support provided through NHS funding.
  • Teaching. Free fees and living costs support through extended undergraduate loans for the year of the Postgraduate Diploma in Education.
  • Social work. Fee and living costs bursaries provided through SSSC, the social services regulatory body, for the year of the postgraduate Diploma in Social Work.

Recent changes to postgraduate funding: no improvement in fairer access

In their responses so far, the Scottish Government has constantly reiterated that changes introduced as part of recent reforms to postgraduate funding represents an adequate, or at least significant, measure to widen access to the legal profession. This post will examine this claim in detail and show why it is wrong. The recent changes are, at best, ineffective and wasteful. They may even be regressive.

The government’s alternative argument, that the Professional and Career Development Loan can deliver access to the profession for less privileged students, is analysed here.

Changes to the DPLP Funding Arrangements for 2012/13

Prior to 2012/13, the Postgraduate Students’ Award Scheme (PSAS) provided 300 fees grants of around £3,400 to DPLP students. Historically, the value of this grant would have matched the actual cost of the course whilst the number available meant nearly every DPLP student could obtain one. Over the past decade, the costs of the course, and the number of students taking it, have risen significantly. The funding remained capped in both value and number of awards. By 2010/11, fees were more than £6,000 whilst more than 650 students undertook the course. So fewer than 50% of students (selected on academic performance) received grants at all. And those that received grants still had to top-up the grant by nearly £3,000.

Until 2010/11, a small means-tested maintenance grant was also available through PSAS, although its value had been heavily eroded by inflation. The Scottish Government scrapped this element entirely in 2010/11 and, since then, there has been no assistance with living costs. As DPLP students fall under postgraduate funding arrangements, they are not eligible for the standard undergraduate student maintenance loans, regardless of need.

For 2012/13, the PSAS partial-fees grants are replaced by the Postgraduate Tuition Fee Loan (PTFL). The loans are cheaper for the Scottish Government, allowing at least part of the money saved to be reinvested in increasing the number of loans available. All eligible DPLP students will now receive a PTFL, representing 600-700 students. However, the amount has remained the same at £3,400. This is around half the total cost of the course: £6,300 plus £400 for compulsory course materials (figures for the University of Edinburgh DPLP)). There remains no support for living costs although the Scottish Government has recently acknowledged that this realistically cost a student around £7,000 per year.

The Scottish Government’s Claim

Referring to the PTFL, the Scottish Government claims that:

The new loan scheme opens up eligibility to a much wider group of students

 (Cabinet Secretary for Education, 31 May)

The PTFL: Ineffective

The government’s claim is true, but only if by a wider group you mean more. Clearly more DPLP students benefit from 600-700 loans per year than 300 grants. But fair access to the legal profession is not about more students having access to an already over-subscribed profession. Fair access to the legal profession is about ensuring that those from less well-off backgrounds are able to compete equally with their more privileged peers.

By this measure, increasing the number of loans available without increasing the amount of the contribution is almost entirely ineffective in widening access. As discussed above, the cost of a DPLP is now around £11,000-13,000 including living costs. Reducing this to around £9,000 is hardly flinging the doors of the profession open.  Less-privileged students not able to make this personal contribution remain cut-off from the legal profession solely by their inability to pay for their training.

The PTFL: Wasteful

The main beneficiary of the changes to the DPLP funding are therefore the well-off majority of students. In recent years more than half of students were able to afford to study the DPLP without any government assistance. These students will now all get a government contribution even though they do not need it. This is clearly a poor use of government money when the government claims that a constrained budget prevents it doing more.

With the removal of the cap on numbers, the PTFL will fund as many DPLP students as the Universities will train. There is already a significant oversupply of DPLP graduates. This means that a significant proportion of funding will go to people who will subsequently be unable to find jobs as lawyers and will be entirely wasted. The fact that the additional support introduced by the PTFL is going to the half of students who performed least well in their studies only exacerbates this.

The PTFL: Regressive?

The PTFL is wasteful as well as ineffective. But is it also regressive?

One of the Scottish Government arguments for the changes is that the previous system of awarding grants by academic merit tended to disadvantage students from non-traditional backgrounds. They rely on evidence suggesting less privileged students do less well in the first two years of University, when academic suitability for the DPLP is judged, than do equally bright students from more privileged backgrounds.

On face value, there is some logic in this argument. But any progressive effect of this change is more than wiped out by the fact that to gain £3,400 of government assistance, students must first be able to afford the personal contribution of £9,000 or more. So the removal of the academic merit test can’t help less privileged students who under-perform because of their background; they can’t benefit because they can’t afford the personal contribution.

In summary, the government has succeeded in introducing a system that does nothing to widen access to the profession. Instead the additional funding freed up by moving from grants to loans has been distributed in a way that overwhelmingly benefits those rich enough to need no help in affording the DPLP. It also does nothing to discourage the current oversupply of DPLP graduates.

It is not suggested that this was the deliberate aim of Scottish Government. But the reforms to postgraduate funding are certainly ill-though through and have resulted in changes that are ineffective, wasteful and probably regressive.

An earlier version of this post was published under the title ‘A Bridge to Nowhere‘.

Why the Professional and Career Development Loan cannot deliver fair access

As part of its arguments that there is no need to provide student maintenance loans to DPLP students, the Scottish Government points to the availability of the Professional and Career Development Loan (PCDL) as an alternative source of funding.

The government’s alternative argument, that the new Postgraduate Tuition Fee Loan widens access to the legal profession, is analysed here.

The PCDL is a Westminster government scheme where students obtain commercial loans from one of two approved banks. Interest is at market rates (one bank was quoting 9.9%) but capital repayment is postponed to one month after graduation. Interest payments during the same period are covered by the UK government. From one month after graduation, the loan operates as a normal bank loan and the student is fully liable for repayment.

There have been a number of doubts over whether the PCDL would be open to DPLP students at all. In theory, the scheme does not apply to courses where there is public funding. Recent changes to postgraduate funding (LINK HERE) have made all DPLP students eligible for a small government contribution to fees, in the form of the Postgraduate Tuition Fee Loan (PTFL). It was thought this may take the DPLP outwith the scope of the PCDL.

The Scottish Government has now told the Law Society of Scotland that it has received assurances from the UK Government that DPLP students will still be eligible for the PCDL. This is good news for those for whom a PCDL may be appropriate. But, in contrast to the implied position of the Scottish Government, the PCDL does not represent a solution to the problem of less well-off students being able to afford their DPLP.

So why is the PCDL no help in widening access to the legal profession? In short, because the PCDL is unsuitable for those from less privileged backgrounds.

Firstly, the PCDL is provided by banks as a commercial proposition not as an act of charity. Students that are seen as too risky are not able to get a loan. By definition, this will tend to exclude those who may already be in debt or who have no identifiable resources: that is, those most likely to be unable to afford to support themselves through the year of DPLP study.

Secondly, taking the DPLP represents a gamble for most students. Only a small proportion of law firms, all of which are large commercial firms, make offers of training positions to students at the pre-DPLP stage. The majority of firms recruit either during the DPLP year or from those who have finished the qualification. So most students start the DPLP with no guarantee of job when they complete the course. For students aiming for the less commercial end of the profession – high street firms, criminal defence, human rights or legal aid / law centre work – there is no chance of a pre-DPLP offer. This gamble is a real one: over recent years, there have been a third more DPLP graduates than there have been training contracts, so competition has been brutal and many DPLP graduates have been able to find legal jobs.

For those with well-off, supportive parents, or who can otherwise accept the financial risk involved, the PCDL is an option. For those without these advantages, the financial risks involved in borrowing commercially to fund their DPLP are massive and the consequences of then failing to find a legal job are extremely serious.

Meanwhile, the Scottish Government continues to deny student maintenance loans to DPLP students. These have significant safeguards for financially vulnerable students: including lower interest rates and the deferment of all repayments until an income threshold is met. It is through extending these loans to DPLP students, rather than through touting the unsuitable PCDL, that the Scottish Government can assist less privileged students to complete their legal education and begin to truly widen access to the legal profession.

The Bridge to Nowhere: Tuition Fee Loans and Fair Access to the Legal Profession

Photo "Pont D'Avignon" (c) Andrei Zmievski from Flikr

From Flikr (c) A. Zmievski (CC BY-NC-SA 2.0)

The Law Students’ Council campaign for fair access to the legal profession has focused on the non-availability of student loans for living costs to students on the Diploma in Professional Legal Practice (DPLP).

In their responses so far, the Scottish Government has constantly reiterated that recent changes to the availability of funding represent an adequate (or at least significant) measure to address the need for fair access to the legal profession.  This post will examine this claim in detail and show why the recent changes are, at best, ineffective and wasteful.  They may even be regressive.

Changes to the DPLP Funding Arrangements for 2012/13

Previously, the Postgraduate Students’ Award Scheme (PSAS) provided 300 grants of around £3,400 for students undertaking the DPLP.  It seems that, originally, the value of the grant more closely matched the actual cost of the course, whilst the number available meant nearly every DPLP student could obtain one.  More recently, the costs of the course, and the number of students taking it, have risen significantly, outstripping the available funding.  By 2011/12, course costs above £6,000.  Well over 600 students competed for the available grants, with the Universities allocating the grants to the 300 students with the best academic record.  Prior to 2010/11, a small grant for living costs was also available through PSAS, although its value had been heavily eroded by inflation.  This living costs element was scrapped for 2010/11.

For 2012/13, the PSAS partial-fees grants are replaced by the Postgraduate Tuition Fee Loan (PTFL).  The loans are cheaper for the Scottish Government, allowing at least part of the money saved to be reinvested in increasing the number of loans available.  All eligible DPLP students will now receive a PTFL, representing 600-700 students.  However, the amount has remained the same at £3,400.  This is around half the total cost of the course (£6,300 plus £400 for compulsory course materials (figures the 2012/13 University of Edinburgh DPLP)).  There remains no support for living costs.

The Scottish Government’s Claim

The PSAS scheme is intended to bridge the funding gap for postgraduate courses and therefore widen access to postgraduate courses for students of all socio-economic backgrounds.  Refering to the PTFL, the Scottish Government claims that:

“The new loan scheme opens up eligibility to a much wider group of students “

(Cabinet Secretary for Education and Lifelong Learning, Scottish Parliament, 31 May 2012)

This is true if by a wider group you mean more.  Clearly more DPLP students benefit from 600-700 loans than 300 grants.  But fair access to the legal profession is not about more students having access to the profession.  The profession is already over-subscribed.  It is about ensuring that those from less well-off backgrounds are able to compete equally with their more privileged peers.

From this perspective, increasing the number of loans available without increasing the amount of the contribution is almost entirely ineffective in widening access.  The funding gap for DPLP students is £11,000-13,000 for the year of study.  The government contribution to bridging this gap, the PTFL, is £3,400.  Students will fall into one of three groups:

  • Those who can fund the full costs of the year of study.  In past years, these students may or may not have been awarded a PSAS grant, but were able to undertake the course regardless.  Historically, this was the vast majority of DPLP students.  Now, they will all receive the benefit of a £3,400 PTFL even if they are in the bottom half (by academic merit) of applicants.  Those who are sufficiently rich to fall in this group, but less academically able, will no doubt welcome the extra assistance but PTFL loans to these students do not improve access to the profession.
  • Those who cannot fund the costs of the year of study even with the PTFL .   Students who cannot afford (or who cannot call on parental support) to bridge the funding gap remaining after the loan (£8,000 – £10,000) will be unable to complete the DPLP regardless of the availability of PTFL.  This is likely to be a sizeable group.  For instance, those students (such as those profiled here) who have benefited most from fee-free undergraduate degrees and the availability of means-tested student loans for maintenance costs are unlikely to be able to produce the £8,000 – £10,000 they will need to gain any benefit from the PTFL.   Despite PTFL, these students  remain cut-off from the legal profession solely by their inability to pay for their training.   (The reasons why commercial Career Development Loans are unlikely to be much help to many of these students are discussed elsewhere).
  • Those who can fund £8,000 but not £11,000.  In principle, there is a small group of students for whom the £3,400 loan will be the difference between whether they can afford to study or not, or for whom it reduces the financial risks to a level they are willing to take.  These are the only students for whom it could be said the PTFL has successfully “widened access”.  Unless the PTFL keeps pace with increases in fees, this group is likely to shrink each year as course fee increases widen the funding gap.

There is no shortage of applicants for the DPLP.  Historically, the vast majority are in the first group and do not require government assistance to undertake the course.  Yet for most students from less well-off socio-economic backgrounds, the costs of studying are prohibitive even with a small contribution from government.  The new PTFL does not alter this situation.  Those who do not need the help get it anyway.  For the vast majority of the rest, the PTFL is a bridge to nowhere.

Are the changes actually regressive?

By making more money available in a way that means it overwhelmingly goes to well-off students who would have undertaken the DPLP in any event, the PTFL is wasteful as well as ineffective.  But is it also regressive?

The Scottish Government has argued that the previous system of awarding grants by academic merit tended to disadvantage students from non-traditional backgrounds as there was some evidence to suggest they did less well in the first two years of University, when academic suitability for the DPLP is judged.

There may be some truth in this argument.  However, any beneficial effect of removing the cap on funded places must be balanced against:

  •  Any advantage bestowed by academic merit has been eliminated.  The funding gap is now equal regardless of academic merit;  the ability to bridge it is dependent solely on ability to pay.  This disadvantages academically able but less well-off students when compared to less-able but rich students.
  • It seems the PTFL will fund as many DPLP students as the Universities will train.  By reducing the financial risks for those students who can afford to bridge the funding gap, the PTFL will encourage a greater number of better-off students to undertake the DPLP whilst making little practical difference to less well-off students.  This will only increase competition for already over-subscribed training contracts.
  • To take advantage of the increased availability of support, any student must still find the £8,000 to £10,000 needed to undertake the DPLP in the first place.  Even if those students from non-traditional backgrounds benefit most from the changes in principle, they are also the least likely to be able to afford to do the DPLP even with the PTFL.

On balance, it would seem likely that any beneficial effect of the changes to PSAS will be more than cancelled out by the regressive effects of the remaining funding gap.

What should be done?

The changes to PSAS have been ineffective in providing fairer access to the legal profession.  If the government contribution towards the costs of studying towards the DPLP is to genuinely promote fairer access then it must meaningfully help the least well-off students bridge the funding gap.  The contribution must therefore be a much more significant portion of the overall costs of the course.

Given that there are already too many people undertaking the DPLP and that those from well-off backgrounds are over-represented, any non-targeted assistance will be inefficient and only serve to encourage the over-supply of DPLP graduates.  Any government contribution must therefore be targeted by means-testing.

The Law Students’ Council is proposing that the existing student loans scheme for living costs is extended to DPLP students.  These are means-tested, so will only go to those who need them.  This change could be implemented quickly and easily, following the pattern established for other postgraduate courses, such as the Postgraduate Diploma in Education or the postgraduate qualifications required for qualification as an architect.

The maximum student loan is £5,570 (which the Scottish Government are committed to increasing to £7,000).   Taken with the PTFL, this would reduce the DPLP funding gap to under £3,000.  Clearly, this does not solve the problem entirely, but it does bring the funding gap down to a level which will mean almost all students can afford to study.  This would also ensure that the benefits of the increased availability of the PTFL are also felt by those they were intended to help.

Other proposals – such as moving to a larger, but means-tested, fees loan, would also assist fairer access to the profession.  In the longer term, the government must work with the legal profession to re-design the route to the profession, to eliminate financial barriers.  But immediate action is needed to prevent another generation of talented students being lost to the legal profession: the extension of living cost loans to DPLP students would achieve this.