This morning’s seminar on reforming legal education and training, hosted by Westminster Legal Policy Forum, provided a timely opportunity to reflect on the progress so far of the Legal Education & Training Review (LETR).
The lead for the LETR, Professor Julian Webb, rightly reminded us that the function of the Review is to address the question of how best to regulate legal education and training – specifically, the scope, reach and proportionality of that regulation. He said that, so far, responses to the LETR discussion papers had reflected vested interests, and had demonstrated limited consensus and offered little in the way of alternative vision.
The optimism which I initially had about this Review has gradually been draining away. Perhaps that was inevitable. The principle of a root-and-branch review sits rather uncomfortably with the pragmatics of funding it. The notion of ‘he who pays the piper’ cannot easily be pushed to the back of one’s mind. If the paymasters are incumbent regulators of professionals, the perception of an independent review in the wider public interest becomes harder to sustain. (I am talking about perception here, not reality.)
To my mind, the Review needs to look at the scope, reach and proportionality of the regulation of legal education and training for the emerging and future legal services market. The starting point should not be, ‘How can we tweak the current framework to meet the needs of the future?’. It was therefore somewhat disappointing to hear Professor Webb say early in his address that the LETR team was not starting with an assumption of any need for fundamental change. My alarm bells are ringing: the market of the present is already (and the future market will surely be even more) fundamentally different, so is it appropriate to surmise that the education and training that underpins it will not need fundamental reform?
And while I can see the attraction of seeking an evidence base for change, and adopting a planning horizon that looks toward the market in 2020, I have to confess that I would not have predicted at the beginning of 2012 some of the developments we have already seen in the first five months of this year, let alone eight years hence. Inevitably, therefore, there cannot be any evidence for the change that might have occurred by 2020. Where does this leave a fundamental, evidence-based, policy review?
I have attended many events recently that explore the work of the LETR. The overwhelming sense I am left with at these events is that the majority of participants are too readily assuming that the only issue that needs exploring is that of regulating the education and training of ‘the legal profession’ (or, on more enlightened days, ‘the legal professions’). But the Legal Services Act 2007 does not start with the assumption that legal services will only be delivered by those who are legally qualified and hold a professional title. It heralds a mix: the concurrent regulation of individuals, activities and entities. However, the present framework of the regulation of education and training very definitely starts with the professions and individual practitioners, so it is perhaps not surprising that a review that is sponsored by the main professions should assumptively start from the same, historically embedded, point.
One of the darker consequences of such a starting point is the insidious and invidious proposition that legal services delivered by those who do not hold a professional title must necessarily be of low or poorer quality, or even incompetent. If sectional responses to the LETR advance this proposition, the Review is doomed. The assumption that competence and ethics can only be demonstrated by those who are legally qualified is arrogant and unjustifiable (I have previously explored this in a different context).
Indeed, the falseness of this view is written into the very core of the Act. Parliament has already decided that legal services do not need to be delivered only by those individuals who hold a protected title, but can be offered by those individuals who are authorised, or entities that are licensed, in relation to one or more of the reserved activities. To suggest that any such authorisation should only be founded on the same breadth of education and training as those who hold a professional title is to seek to achieve by the back door what Parliament has opened the front door to avoid.
The future market will not be one where only qualified lawyers deliver legal services. We already know this – even if we do not yet appreciate the full variety of those who will, in time, be authorised or licensed. Lawyers will become a subset of the total number and type of providers. The task for the LETR cannot be limited to how to adopt or adapt the route to professional qualification for broader purposes (and, to be fair, its terms of reference do not suggest that it is). The future will also have reserved activity specialists and non-lawyers engaged in the delivery of legal services, as well as in the ownership, financing, governance, compliance and management of the entities providing those and other services. To assume that their education and training needs can (or, worse still, should) somehow be carved out of a broader legal qualification process to me presents the greatest threat – and would perhaps even deliver the fatal blow – to the credibility of any proposals for the future.
Even if we accept that the current process of education and training for those who seek or hold a professional title is not broken and is entirely fit for purpose (personally, I still have doubts on this, but bear with me), the nature and breadth of the future market must surely mean that the same process cannot possibly be adequate for the new market in its totality. A system designed for one purpose (even assuming that it is fit for that purpose) is not necessarily or inevitably fit for a different purpose.
Barely a whisper is heard about the needs of those in the broader market, and the expectations and needs of clients are almost universally unmentioned: the discourse is regrettably dominated by justification and defence of the current framework for training those who seek or hold a professional title. Until we disconnect the award and retention of a title from the quality and standards of competence and ethics required of those authorised to deliver a regulated activity, we are not even on the starting blocks of a proper debate about the future scope, reach and proportionality of regulation for legal education and training.
The LETR must therefore address the broader question first: what is the proper scope, reach and proportionality for the regulation of the (not simply legal) education and training of all those who are authorised or licensed to deliver regulated services, or who work within regulated entities? Only then should it move on to consider whether the current framework for regulating the education and training of those who presently hold professional titles has the proper scope, reach and proportionality consistent with those broader needs and objectives. To do otherwise is to start at the wrong end of the telescope: we should be looking from the outside (market) back in, not from the inside (professions) out.
Individual regulators might well choose to impose additional burdens on individuals who wish to hold a professional title. But perhaps those regulators should first be required to ensure that market-wide minimum requirements for authorisation in relation to specific reserved activities are met before imposing additional obligations for the award of a professional title (such as a need to be authorised for more than one reserved activity). We might then find that the public and consumer interest should require a higher minimum standard for initial authorisation (say, for some rights of audience exercised by solicitors) than the current process of ‘bundled authorisation’ imposes. The training I received 35 years ago in conveyancing should not, without a lot more (and CPD isn’t it), still form the basis for me exercising a reserved instrument activity today.
If it is clear that any meaningful consensus or alternative visions are not going to emerge from current stakeholders, the LETR faces the monumental challenge of going back to basics, with no assumptions, and ignoring vested interests. In that case, it is time for the LETR to raise the temperature, and publicly challenge all of us to consider the wider public interest in the education and training needs of all those providers who will be competing in the liberalised legal services market that Parliament has already created rather than in the historical and relatively uncompetitive, unchallenged market that the professions might prefer to see continue.
Is the LETR being treated like a doormat? I don’t think so. Will the eventual conclusions and recommendations of the LETR land on the doormat with the thud of a well-meaning and worthy, but ultimately unfulfilling, enquiry? Not necessarily. But unless there is more overt challenge to the established hegemony of existing stakeholders in the education and training of lawyers, we will miss this once-in-a-generation opportunity to re-conceive for the better a key component of an independent, strong, diverse and effective market, of which the legal professions must, rightly, remain a part.