Regulating education and training in a liberalised legal services market:

The experience of England and Wales

Julian WebbUniversity of Warwick, UK

(Melbourne Law School, Ausfrom August 2014)

ILEC VI , London 2014

Market liberalisation rather than deregulation

Dual system of oversight and frontline regulation, with separation of regulatory and representative functions

Complex regulatory system of multiple regulators with mix of individual and entity regulation

facilitates a limited market in regulation (regulatory competition)

Evidence of a new ‘political and moral economy’ of professional regulation

Increased significance of education and training

(1) In this Act a reference to “the regulatory objectives” is a reference to the objectives of—

(a) protecting and promoting the public interest;(b) supporting the constitutional principle of the rule of law;(c) improving access to justice;(d) protecting and promoting the interests of consumers;(e) promoting competition in the provision of services within subsection (2);(f) encouraging an independent, strong, diverse and effective legal profession;(g) increasing public understanding of the citizen's legal rights and duties;(h) promoting and maintaining adherence to the professional principles.

Section 4 duty:The [Legal Services] Board must assist in the maintenance and development of standards in relation to—(a) the regulation by approved regulators of persons authorised by them to carry on activities which are reserved legal activities, and(b) the education and training of persons so authorised.

Announced regulators’ review of legal education and training

Legal education and training is central to encouraging ‘an

independent, strong, diverse and effective legal profession’.

“[Workforce development] is about achieving a constant interplay

between practice and education, with the two spheres in constant dialogue,

each driving improvement and innovation in the other to the broader

public good.”

Joint project of BSB, IPS, SRA Review of the regulation of E&T for the legal

services sector - so different and wider First phase commenced in May 2011;

reported in June2013 Evidence-based approach Implementation work ongoing (2017/18)

Tearing up assumptions: in the real world...• Level of qualification

may be only weakly correlated to competence

• Less need for full-service lawyers

• Relationship between cost and quality of service is NOT linear

• ‘Quality’ is more than ‘technical’ competence – soft skills, systems, etc

Initial + continuing (active)

• Too much focus on input , not enough on outcomes and outputs (eg‘benefits’ approach to CPD)

• Need for greater consistency across whole piece

What about ‘Competence+’?

• Ok but not a requirement – market differentiation

• Activity based authorisation?

• Re-accreditation?

No clear evidence that the system is fundamentally not ‘fit for purpose’

Need to build on strengths and address some weaknesses for the future

Overarching theme: enhancing quality, accessibility and flexibility of the LSET system(s)

Outcomes-led system ‘Day one’ outcomes defined by reference to the knowledge, skills and attributes of a

competent practitioner

Increase consistency in assessment standards

Greater co-ordination and collaboration between regulators in setting standards

Redefinition of content will follow; Report highlights concerns in respect of professional ethics, communication skills, management skills

Structures Focusing CPD on learning, not just “hours” – move to more outputs-driven model

Supervised practice (such as the training contract) no longer determined by time-served

Flexibility – more opportunities to work and study in different configurations

Access and diversity: Supporting apprenticeships, set standards for internships and work placements, standards/qualification scheme for paralegals

Voluntary regulation of paralegals outside regulated organisations

Better information On diversity

On careers options, opportunities and risks

Greater coordination across system of information resources, research and development, and evaluation

04 February 2015 9

Opportunities: Fits with regulatory direction of travel (and new political economy) Better aligns the academic, vocational and continuing stages of LSET Puts ethics and values more centre stage = remoralization of professional

regulation Transforms ‘competence’ from a relatively static, passive concept, to one that is

active and continuing, Supports the opening up of new, flexible, qualification pathways and careers

within the legal services sector.

Risks: Liberalises /flexibilises too much Further ‘bureaucratises’ learning Creates divisions between first and second class pathways - increasing liminal

workforce, and Creating new access problems without adequately resolving existing ones Implementation: resources and mechanisms for change? Pony express or snail

mail? Collaboration between regulators/regulators and others

“A resounding sentiment was that there needs to be a permanent conversation about the future of the profession – from broad and creative imaginings of future business structures, to assessing emerging technologies, to pedagogical reform in the training of lawyers – to encourage lawyers to innovate within their own practice setting. More often than not, participants affirmed that there should be space within the CBA for these issues to be discussed on a more regular basis.” (Canadian Bar Association, 2014:24)

...the fundamental tension between education of lawyers as delivering public value and education of lawyers as delivering private value is structural. The tension may manifest itself in different ways under different conditions, but it will always be with us and must always be managed. Other matters likely to continually give rise to stresses, challenges, and the need for managing change are: the economics of law schools; the rapid evolution in the market for legal services; the function and value of accreditation standards; the financing of legal education; the role of parties other than law schools in legal education; and the role of media in understanding legal education and communicating with the public. Since these forces and factors will always be with us, it is prudent for the system of legal education to institutionalize the process of dealing with them. All parties involved in legal education should support a framework for the continual assessment of strengths and weaknesses and of conditions affecting legal education, and for fostering continual improvement. The process should ensure that not only law schools, but also practicing lawyers, judges, and other interested actors have a voice and an opportunity for meaningful contribution.” (ABA Task Force, 2014:29)

A. Sherr and S. Thomson, ‘Tesco Law and Tesco Lawyers: Will Our Needs Change If the Market Develops?’ Oñati Socio-Legal Series, Vol. 3, No. 3, 2013. Available at SSRN: http://ssrn.com/abstract=2293660

H. Sommerlad et al (eds) The Futures of Legal Education and the Legal Profession (Hart, 2014), forthcoming.

Special Issue: Law Teacher, vol. 48(1) (2014). M. Thornton, Privatising the Public University: The Case of Law (Routledge, 2012) J. Webb, ‘Regulating Lawyers in a Liberalized Legal Services Market: The Role of

Education and Training’ (2013) 24(2) Stanford Law & Policy Review 533-70. J. Webb, ‘The LETRs (Still) in the Post: The Legal Education and Training Review

and the Reform of Legal Services Education and Training – A Personal (Re)view in Sommerlad et al (2014).

J. Webb, The New Moral Economy of Legal Services and the Moral Economic Regulation of the Legal Profession in Australia and England (forthcoming).