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in this issueThe Devil's Advocate – a new approach to advocacy

An insight into Equity & Trust Law

New developments in Health Care Law

PLUS

A review of the Clementi Report and The Training Framework Review

Spring 2005

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Welcome to the Spring Edition of AcademicNews from Sweet & Maxwell. AcademicNews offers you the most up-to-date

thinking and publications in the legal world and it’sall directly relevant to YOU. In this issue, Iain Morleywill be presenting his new, innovative book, “TheDevil’s Advocate” and Jean McHale and her team willbe offering her views on current issues in medical andhealthcare law. Also in this edition, news of theforthcoming BIALL 2005 conference, which is beingheld in Harrogate this year. Mike Cuthbert of theAssociation of Law Teachers will also be bringing youthe latest news in the legal academic world.

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CONTENTS

04 The Devil's Advocate – Iain Morleypresents a taster of his innovative newbook on advocacy

06 Questions To The Author – Michael Haleyand Lara McMurtry offer their insight intoEquity & Trust Law

08 Inspection Copy Order Form

10 New Developments in Health Care Law –Jean McHale and Marie Fox examine recentdevelopments in health care law

14 The Revolution Is Here! Mike Cuthbert ofthe Association of Law Teachers looks atthe Clementi Report and The TrainingFramework Review

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Latest news from Sweet & Maxwell

Here's an exclusive preview of this innovative text.

This book will take you two hours to read.

I hope you may never forget it.

I hope you will come back to it time and again.

Keep it for reference.

It’s been published in a small size so you can carry it about.

It is full of good ideas which in the early years of yourpractice, you can dip into while thinking of what to do

in a case.

With reading it, your advocacy will probably improve immediately.

It's almost guaranteed.

This is not a reasoned academic text. It is a polemic. It isabout being good in Court – no messing, no guff, no

clever arguments, no tedious endless proofs andjustifications. It tells it as it is.

It's about how to do the job really well.

And it applies to all advocates of up to 5 years’experience.

It is designed to be read easily by anyone interested inbecoming an effective advocate, whether presently at

school, in university, at law school, or in the early stagesof doing the job at the Bar or as a solicitor.

It is written with crime in mind. But many of the rulesapply to the courtroom in civil practice too.

The book will make sense wherever the justice system isadversarial. Much of what is in this book has been or isbeing taught in Scotland, Ireland, India, South Africa,Hong Kong, Australia, New Zealand, Canada, and the

USA. Many of the techniques are being embraced by theformerly communist countries of Eastern Europe. The

rules of advocacy are travelling widely.

I’ve written it in pretty much my style of speech fromwhen I teach advocacy students. The book should readlike I am talking to you, with colour and enthusiasm. It

shouldn’t feel like you are reading. I am hoping the stylewill be effective in communicating what may otherwisebe a series of rather dull rules. My apologies if I appearto over-egg it in places, and drive you a bit nuts! But at

least, you’ll probably remember what’s been said.

academicNEWS4

THE DEVIL’S ADVOCATEIain Morley brings a fresh approach to a book on the

Dos’ and Don'ts of good advocacy. His work, 'TheDevil's Advocate' is exactly what it says: 'a short

polemic on how to be seriously good in court'. It iswritten in a conversational style with the helpfulfeature that only one or two points are raised on eachpage. In this way, the message is more memorable. Onsome pages, there is no more than a single word.

Iain is a barrister of 16 years call in a well-knownLondon chambers, and in daily practice in serious crimein the Crown Courts where he prosecutes and defends,including on occasion, in high-profile cases. In addition,he teaches advocacy skills pro bono to all the InnerTemple juniors, organises their courses, writes much ofthe teaching materials, presents training abroad, andteaches the teachers who include silks and judges.

Where I refer to an advocate or judge, I will use theexpression “he” as being I hope gender neutral.

You won't agree with everything you read.

Good.

At least you're thinking.

Thinking about advocacy.

What works and what doesn't.

And why.

The book is called The Devil's Advocate because it maymake you see advocacy from a new perspective.

Your assumptions will be challenged.

Each page will contain one or two thoughts, no more.

Some pages will therefore be short.

Some of them very short.

Like this one.

Try not to fly through the book.

Instead, think about each page as you read it. Lodge each thought in your mind.

Don't skim. Think.

As for myself, I don't pretend I can do advocacy rightevery time in court, but I think I've come across what

works. And I know I will always be learning.

LEARNING ADVOCACY

Advocacy is a skill.

The skill of

persuasion.

Like ANY skill,

ADVOCACY CAN BE LEARNT.

Up to a point.

No one can be taught to be a brilliant advocate,just as no one can be taught to be a brilliant

pianist. Brilliance requires talent. Whether any ofus have talent is in the gift of the Gods.

However, we can be TAUGHT COMPETENCE in advocacy.

Competence is not making errors.

We can be taught how not to make errors.

Simply that. No more complicated than that. No errors.

Just as most people can be taught to play the piano,so too can they be taught advocacy. An error-free

performance on the piano, like perhaps a youngsterplaying Beethoven’s fairly simple “Fur Elise”, iscreditable, will raise murmurs of approval, and

generally cannot be hugely criticised. The youngstermay not be destined to be a brilliant pianist, but anerror-free Fur Elise is something most youngsters can

be taught to play, even if a little woodenly.

In the same way, we can learn an error-freeperformance in Court.

But unlike the pianist, an error-free performance incourt is something more...

It is highly unusual.

Advocacy without errors is no small achievement.

www.sweetandmaxwell.thomson.com/academic 5

Order an Inspection Copy of Iain Morley’s The Devil’s

Advocate by completing the FREEPOST form on page 8

or visit www.sweetandmaxwell.thomson.com/academic

ISBN 0421 914807 £18

academicNEWS6

Michael Haley and Lara McMurtry, authors of theforthcoming “Equity and Trusts – Sweet &Maxwell’s Textbook Series”, offer an insight intoEquity & Trust Law.

What have been the major developments inEquity & Trust Law in recent years?

Michael: From my perspective, the recentclarification of the role of resulting trusts,constructive trusts and estoppel in acquiring a sharein the family home has proved an interestingdevelopment. Perhaps less engaging, but equallyimportant is the Trustee Act 2000, which provides amuch-needed overhaul of trustees’ powers and thestandards expected from trustees.

Lara: The Charities Bill is an importantdevelopment in that it should bring about,amongst other things, a new legal definition ofcharity. It is also difficult to ignore the increasingsearch for compatibility with the EuropeanConvention of Human Rights in areas as diverse asthe grant of interim injunctions to restrainpublication prior to trial in cases involving breachof confidence and the preservation of the familyhome following bankruptcy.

What important cases does the book coverand highlight?

Both: The book will explain and analyse recentcases, both reported and unreported in the keyareas. Major examples include Twinsectra v Yardleyon dishonest assistance and Pennington v Waine onunconscionability and constitution of trusts. Morerecently, for example, the Court of Appealdecisions in Hiscock v Oxley and Curley v Parkesmark notable developments in the law of co-ownership. Of course, this is not to ignore thebetter-established authorities. By way ofillustration, the litigation on s.53(1)(c) isnotoriously difficult for students to take on board.The book seeks to provide a comprehensiveanalysis and overview of this and otherproblematic areas.

What sets your book apart from other Equityand Trusts Law textbooks?

Both: The book is distinctive for a text of thisnature. While it is important that the bookmaintains a clear and accessible quality, and catersfor students whatever their ability, it will beauthoritative and strong on commentary. Theauthors’ perspective on the subject matter willpervade the text. It is also designed with thestudent in mind and will allow the reader to relatethe product bought with the product taught. Inshort, we aim to offer an incisive and usefultextbook.

What are the key elements that you feel makea good student textbook?

Both: A textbook should be accessible, accurateand relevant for a wide range of students. The aimmust be to provide a succinct, well-writtenanalytical coverage of the key areas that challengesthe better students and yet maintains the interestof every reader. It must also be contemporary andreflect modern thinking and modern trends.

questions to the author

What’s the hardest part of writing a book?

Michael: Getting started. It takes two or threechapters before the shape and style of the bookbecome clear. After that point, it develops amomentum that makes the subsequent chapters alittle easier to write.

Lara: The hardest part is to maintain a consistentapproach over a large number of chapters. This is,understandably, more difficult with a co-authoredtext where there can be divergent styles andcontrasting views.

Who inspired you at university and why?

Michael: In my case, it is so long ago that it is hardto remember. I was, however, fortunate to betaught equity and trusts by the late ProfessorParker (of Parker & Mellows fame). I liked hisintellect, his writing and his teaching.

Lara: As an undergraduate I was impressed by thework of Professor Kevin Gray. I still believe that hismain textbook on land law is unsurpassed.

How do you continually inspire your students?

Michael: Most students take time to adjust to theproperty law subjects. Land Law and Equity andTrusts are viewed as being technical, difficult and asdull as ditch water. It is, therefore, difficult toinspire students on an intermittent basis never mindto do so continuously. Nevertheless, I live in hope!

Lara: The more realistic goal is to engender somecontinuing interest in the subject area. Small tutorgroups provide the ideal platform to communicateenthusiasm. If you can get students involved intopical discussion, they begin to see the relevanceof much of Equity & Trusts to their everyday lives.

How do you see the teaching of law evolvingin the 21st century?

Both: The teaching of law will change dramaticallyover the forthcoming years if student numberscontinue to grow. On core courses in particular,tutorial sizes will inevitably increase and mostlecture theatres will be woefully inadequate for thepurposes of teaching such courses. The use of

technology (for example, video links and theInternet) will assume more importance than theydo currently. The danger, of course, is that thelearning experience will be lessened as the processbecomes more impersonal.

What will be your next project?

Michael: It looks as if I will be writing another book,but this time on the law of landlord and tenant.

Lara: I will be writing on the area of mortgage law.

www.sweetandmaxwell.thomson.com/academic 7

Order an Inspection Copy of Equity and Trusts: Sweet & Maxwell’s Textbook Seriesby completing the form on page 8

or visit www.sweetandmaxwell.thomson.com/academic

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10 academicNEWS

Since the first edition of our textand materials was published in1997, health care law has evolved

rapidly. From the fall out from theKennedy Inquiry into the paediatriccardiac unit at Bristol Royal Infirmarywith its consequent impact on NHSstructures and consent processes to theAlder-Hey Inquiry and the HumanTissue Act 2004, the pace of change hasseemed relentless. On the face of it oneof the most significant changes hasbeen the passage of the Human RightsAct 1998, which some commentatorspredicted would have a direct impacton this branch of law that is centrallypreoccupied with matters of how wechoose to live and die.

One recent health care case whichcertainly has captured popular andlegal imaginations is Natalie Evan’shigh-profile court battle with her ex-partner, following his oppositionto her attempts to have cryo-preserved embryos created via IVFimplanted. This case illustratesgraphically the potential for conflictnot only between the competinginterests or human rights of variousparties involved in reproductivedecision making but also betweenrights-based arguments andregulatory regimes like thatintroduced by the Human Fertilisationand Embryology Act 1990. Havingexhausted her domestic remedies,when the House of Lords refused tohear her appeal against the rulingthat under the Act consent by bothparties was vital at every stage of theprocess (see S. Sheldon, “Evans vAmicus Healthcare; Hadley v MidlandFertility Services – Revealing cracks inthe ‘twin pillars’? (2004) 16 Child andFamily Law Quarterly 437), it wasreported in February that she hadlodged an application with the

European Court of Human Rights,arguing that English law breachedher rights to privacy and family life,and, more tentatively, suggesting thatthe embryos may have a qualifiedright to life.

When the Human Rights Act 1998came into force it was anticipatedthat it would lead to a proliferationof such cases, necessitating areconsideration of applicable legalprinciples in the light of new legalchallenges. Yet, five years later theimpact of the Act, and human rightsbased arguments, on health caredecision making appears limited.Abortion and euthanasia are areas ofethical dilemma which might havebeen expected to generate humanrights litigation, given the rightsjurisprudence they have producedelsewhere, notably in the USA,Canada and Ireland. However,challenges under the 1998 Act havenot materialised in relation toabortion, with the possible exceptionof a recent highly publicised butlegally problematic case in which aChurch of England curate sought tochallenge the decision not toprosecute in a case in which a latetermination had allegedly beenundertaken on a fetus with a cleftpalate. In relation to end of lifedecision making, the judicialapproach has been cautious andlimited to confirming existing legalorthodoxy in cases such as Pretty vDPP, where an attempt to argue thatthe prohibition upon assisted suicideunder section 2 of the Suicide Act1961 contravened a series ofprovisions of the ECHR wasunsuccessful.

The absence of ground-breakinghuman rights litigation in health carelaw may stem from a sense that the

New developments inhealth care law: theHuman Rights Act 1998 –a real force for change?Jean McHale and Marie Fox examine the recent developmentsin health care law as a precursor to the forthcomingpublication of their Health Care Law: Text and Materials.

www.sweetandmaxwell.thomson.com/academic 11

rights enshrined in the EuropeanConvention are too vague andoutdated to be applicable to theethico-legal dilemmas raised bymodern heath care. Certainly it seemsthat, in practice, the English judiciaryare uneasy about engaging with issuesof fundamental ethical controversy, asdemonstrated by their narrowapproach to claims asserting right toaccess reproductive services ((R Mellor)v Secretary of State for the HomeDepartment [2002] QB 13).

There are, however, some signs that amuch heralded human rights cultureare beginning to impact in a less directway on health care law. For instance, inthe case of Tarbuck, Blood and Blood(2002 unreported) human rightsarguments formed the basis of anaction brought by women who hadgiven birth posthumously to childrenborn via modern reproductivetechnology for the name of theirdeceased husband/partner to beincluded on the child’s birth certificate.Their claim was rooted in the right of achild to ascertain his or her geneticidentity – which was argued was to beinherent in Article 8 of the ECHR. Thislitigation collapsed on the first day ofthe hearing when the Governmentlawyers conceded the case, andsubsequently the Human Fertilisationand Embryology Deceased Fathers Act2003 was passed.

The areas of health care law where theHuman Rights Act has had most impacttend to be those where human rightsprinciples have already been activelyengaged before the European Court ofHuman Rights. This is particularlyevident in relation to mental healthlaw which prompted the firstdeclaration of incompatibility to beissued in the area of health care law (R (H) v Mental Health Review TribunalNorth and East London Region andanother (28th March 2001). Lessdirectly, in a number of casesconcerning enforced sterilisation (seefor instance Re SL (Adult Patient)(Medical Treatment) [2000] 1 FLR 465;Re A (medical treatment: malesterilisation) [2000] 1 FLR 549) thereare signs that judges are increasinglyconscious of human rights argumentsleading them to be significantly lesscavalier about abrogating fundamentalreproductive rights than the routine

sanctioning of sterilisations on medicalgrounds on which characterised judicialapproaches in the 1980s. The newrights culture which the legislation wasdesigned to herald has also affectedthe manner in which those aggrievedby the actions of health careprofessionals may frame theirarguments as, for example, illustratedby Evans v Amicus Health Care itself.

Of course, the invocation of humanrights discourse is always problematicgiven the tendency of rights to conflict– whether the individual rights at playin reproductive conflicts or disputesover decision making for children, orwhere individual rights potentiallyconflict with state interests, as in theright to die cases. Increasing resort torights discourse is likely to simplygenerate competing claims which maynegate the effectiveness of resort tothe language of rights, as in casesconcerning resource allocation (see, forinstance, Watts v Bedford PCT (2004)EWCA 166.

Significantly, certain areas of potentiallitigation remain wholly unexplored,such as the parameters of the healthprofessional’s right to conscientiousobjection. In this and other areas ofhealth care law, the long-term impactof the Human Rights Act and its abilityto bolster the discourse of patients’rights remains to be seen. What iscertain is that the language of humanrights will become more significant. Forinstance, the European Union’sincreasing engagement with healthlaw principles is highlighted in the waythat the new EU Constitution includesthe Charter of Fundamental Rights andFreedoms – presently soft law – whichcontains many provisions, including arequirement to respect human dignity,that resonate in the area of health carelaw. In the future judges may becalled upon to give more substance tosuch vague concepts. Moreover, asmedical technologies in the fields ofgenetics, cloning and transplantationpose a growing challenge to the clearboundaries which law has constructedbetween humans, animals andmachines, it would seem that in thefuture health care law is likely to raiseas many intriguing issues about theconcept of the human as it does aboutthe discourse of rights.

To order an inspection copy of Health Care Law: Textand Materials, see page 8 for the order form or visit

www.sweetandmaxwell.thomson.com/academic

For 2005 BIALL is returning to its roots by going back to Harrogate, the venue of the Workshops in 1967 and 1968 that ledto the foundation of the Association. After Liverpool 2 years ago and Edinburgh, this continues what appears to be a developingtrend of recent times of revisiting early conference locations, though the hope would be that the attendance in 2005 willoutnumber the original 17 who attended the workshop in Harrogate!

The town itself is situated in a beautiful area of Yorkshire with the dales and the historic City of York in close proximity.Harrogate has many attractions of its own, including the spa and a Turkish Bath in which the strains of a hard day'sconferencing (or hard night's socialising for that matter) can be eased away.

The Conference will aim to cover topics relating to the dual role of legal information professionals as both facilitators for end-usersto gain access to the various relevant services and as guardians of the quality and quantity of information available. It will also aimto look at the other professions around our own, but with which we have an increasing interaction, including Professional SupportLawyers and IT professionals. Confirmed speakers include Richard Susskind and Charles Oppenheim.

For more information and details of how to book, visit www.biall.org.uk or email rcook@mayerbrownrowe.com

Here are the other events that Sweet & Maxwell will be attending in 2005 Make sure you visit our stand!

Conference For Teachers of A Level Law, 17–18 March 2005, Cambridge www.cont-ed.cam.ac.uk/LegalStud/alevel/

BILETA, 6–7 April 2005, Belfast www.law.qub.ac.uk/bileta2005/

Association of Law Teachers, 20–22 March 2005, Edinburgh www.lawteacher.ac.uk/events/index.html

Socio-Legal Studies Association, 30 March–1 April 2005, Kent www.kent.ac.uk/slsa/conferences.htm

Society of Legal Scholars, 6–9 September 2005, Glasgow www.legalscholars.ac.uk

36th ANNUAL STUDY CONFERENCE AND EXHIBITIONGATEWAYS, GATEKEEPERS & GATECRASHERS

Harrogate International CentreFriday 10th June – Sunday 12th June 2005

Sweet&MaxwellSweet&MaxwellBREAKING NEWS BREAKING NEWS BREAKING NEWS BREAKING NEWS

Mike Cuthbert from University College Northampton and the Association of Law Teachers providesup-to-the-minute news of the Clementi Report and The Training Framework Review

academicNEWS14

Lord Falconer addressing the LawSociety Council in January 2005 saidthat ’in the legal sector, as in every othersector, people expect value for money.They expect services that are deliveredin ways which suit their needs. And theyexpect that if they receive poor servicethey will get proper redress’. Since thepresent government came into office inMay 1997 there has been a great deal ofchange in the funding and delivery oflegal services. There are many viewsabout whether these changes haveimproved the service to ‘the customer’but that has always been one of the aims,along with efficiency and effectiveness,to justify reforms. The Review of theRegulatory Framework for LegalServices in England & Wales undertakenby Sir David Clementi should be seen inthe context of this continuing revolution.

In July 2003 the Department forConstitutional Affairs concluded that theregulatory framework for legal serviceswas ‘outdated, inflexible, over complexand insufficiently accountable ortransparent’ and asked Sir DavidClementi to carry out a review. Theterms of reference given to Sir David inJuly 2003 were very wide; ‘to considerwhat regulatory framework would bestpromote competition, innovation and thepublic and consumer interest in anefficient, effective and independent legalsector. Thus, he not only looked at theway the legal profession was regulated,

but also the business practices orstructures of the whole legal professionand not just the familiar solicitor,barrister and legal executive!

Clementi agreed and said that the currentsystem was flawed. The currentcomplaints system run by lawyersthemselves raised the issue of whether itcan achieve consumer confidence. TheLaw Society’s Consumer ComplaintsService receives around 17,000complaints a year and the Bar Councilabout 500 complaints from clients,solicitors or judges. These currentsystems for dealing with complaintsagainst members of the legal professionrun by the lawyers themselves go to theheart of consumer confidence inClementi’s opinion. The ‘consumer’looms large not only in the terms ofreference given to Sir David but also inhis recommendations.

Sir David favours a regulatoryframework which permits a highdegree of choice for the consumerthrough greater competition betweenproviders of legal services. He adoptsthe Model B+ regulatory body identifiedin the consultation exercise. This meansthat the legal professional bodiessuccessfully argued against a body likethe Financial Services Authority. Theestablishment of a Legal Services Board(LSB) vested with regulatory powersand separate from government control,

should provide a framework whichpromotes competition and innovation.The LSB would work with an Office forLegal Complaints (OLC). The latterwould be an independent body dealingwith individual complaints, subject tothe oversight of the LSB. Any issueabout the professional conduct of anindividual would remain with therespective professional body. This is inrecognition by the Review that thepresent disciplinary system worksreasonably well.

Clementi recognised that the costof legal services was an importantissue. ‘High quality legal services areimportant to society, but of limited valueif available only to the very rich or thosepaid by the state.’ He recommended thedevelopment of Legal DisciplinaryPractices (LPDs), where law practiceswould bring together lawyers fromdifferent professional bodies to providelegal services. This would mean thepotential for solicitors, barristers, legalexecutives and other legal professionalscoming together to provide legalservices to consumers. Such practicescould be owned by individuals who donot belong to any branch of the legalprofession and thus subject to legalethical practices. The main test wouldbea ‘fit to own test’ plus other safeguardsstipulated by the new regulatory body,the LSB. The Bar Council is notin favour of any changes which

The Revolution is here!?The Clementi Report – all together now?

www.sweetandmaxwell.thomson.com/academic 15

might compromise the fundamentalindependence of lawyers and remainsopposed to ownership or control of legalpractices by people not bound byprofessional ethical codes. Multi-disciplinary practices, in the view of theBar, have been discredited: they wouldcause the ‘Eronisation’ of the law. TheClementi Report does not recommendthe approval of Multi-DisciplinaryPractices (MDPs), but it sees theregulation of LPDs as a major step onthe road towards MDPs if the regulatoryframework is successful.

The government response to Clementiwill come later this year when theypublish a White Paper, but the LawSociety has already made changes. FromJanuary 2006 there will be two bodies;one dealing solely with consumercomplaints and one dealing with otherregulatory matters. This separationshould reduce the scope of confusionamongst consumers and thus promoteconfidence in the system for dealingwith complaints.

Clementi ponders the expectationamongst some that he would recommendthe fusion between the Bar Council andthe Law Society. ‘There would beadvantage in such a move in areas suchas education, and it would ease some ofthe existing regulatory and competitionissues.’ In view of the review of thetraining framework being undertaken bythe Law Society the advantage of fusionidentified by Clementi might becomemore pressing.

The Training FrameworkReview – One step forwardor two steps back?

The Training Framework Review Group(TFRG) has prepared a report for theTraining Committee of the Law Society,which recommends a radical change towhat could be the experience of thegraduate seeking to qualify as a solicitorafter 2008. The review began in 2001following criticisms of the currentsystem by practitioners. Solicitorpractices are businesses and it was feltthat trainee solicitors were not able tocontribute as fee earners soon enough intheir careers. There was also the concernthat some parts of the academic orundergraduate stage of training was notrigorous enough or provided the depthrequired in such subjects as contract.

The Review identifies other issues thathave arisen since 2001 and which havemade the need for change to the processof qualifying as a solicitor morepressing. As the Law Student 2000research showed. The cost of qualifyingdoes act as a deterrent to those frompoorer financial backgrounds. Debt ongraduation is increasing and with theability to raise university fees in 2006,despite government safeguards, this islikely to continue to rise. However, if theprofession wants an all-graduate entrythis is inevitable, so it is the vocationalstage of training that is the focus of themain proposals in this Review.

The Legal Practice Course is compulsoryunder the current Law Society trainingrequirements. It is also expensive to somepeople, adding to the debt of the graduateand perhaps deterring those from enteringthe profession who would give it thediversity that it is felt it should have.Many LPC providers argue that the feesfor the course are at the current levelbecause of the expectations of the LawSociety. The approval system is rigorousas to the resources that are needed and theregular monitoring by the Society forquality assurance is a burden that has tobe paid for. Can this situation be changed?

The Review suggests that there should bemore than the current roads toqualification. There should be flexibilitywhich may overcome some of thedeterrents identified by the Review.Instead of the LPC being compulsory orthe route to qualification beingprescribed, the emphasis should changeto assessments. These assessments arederived from the ‘Day One’ skillsidentified by the Society for new entrantsto the profession. This would mean thatthe Law Society would no longer have toapprove or monitor the LPC providers,with the possible savings to the Societyand to the provider perhaps beingreflected in lower fees? It would bethe ‘assessments’ that would be validatedand monitored by the Law Society. Theassessments would concentrate on theability to complete legal transactions andresolve legal disputes and todemonstrate, in simulation, associatedprofessional skills.

Without the need to attend and passthe LPC course the graduate would befree to attend a ‘crammer’, as is theexperience of those preparing for the

New York Bar examinations. Would thisbe a cost saving to the individual? Wouldit lower standards in the profession? Themajority of students on the LPC do notwork part-time because the course is sointensive. Would the attraction be tothose students from lower socio-economic groups that in this newsituation they could work? The Reviewbelieves that the majority of studentswill go on as now, attending the LPC,but the difference is that it would not bea prerequisite. Would the proposed newsystem be cheaper? It is doubtful,especially if the emphasis is on theoutcomes that a student mustdemonstrate in the assessments. Thiswill be for the Law Society to set up andmaintain. Will it be like a skill-based‘Law Society Finals’ regime?

The Review also raises questions aboutthe training contract. Although this two-year work-based experience is seen asbeing very important the Society isworried about the impact of theMorganbesser judgment of the EuropeanCourt of Justice in 2003. This casecentres on a French law graduateseeking recognition of her qualificationin Italy as part of the registration processwith the Genoa Bar. Would her period ofpractical experience in France becounted towards that required by theauthorities in Genoa? Although it seemsa very narrow interpretation of thejudgment the Review group feels thatthe onus is on the Society to facilitate therecognition of this pre-qualificationexperience. Should this be a majorconcern of the Review? Apparently20–25% of new entrants who qualifyeach year do so on the basis of their legalqualification in another jurisdiction orare barristers in England and Wales. Thisfigure is likely to increase.

The Review has a number of worthyaims, especially with regard to theflexibility that a reformed trainingframework could provide, but whetherthe recommendations they make willachieve them is open to furtherdiscussion and research. They do notwant incremental change when in fact inthe changing climate that might be thebest solution.

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