Addressing information needs and regulatory design – from information hub to Legal Education Council
6.142 This final section draws together three key elements of this report and the Literature Review: the need to set appropriate standards and outcomes, the need significantly to increase access to information about LSET, and the need to ensure that these activities are set within an appropriate framework of institutional and regulatory design.
6.143 It is clear from the LETR research phase that there are elements of the LSET system which, when viewed as a whole system, are not working. The system does not consistently benefit individual consumers, who have limited guarantees of quality, and inevitably lose out to the commercial sector in the competition for legal resources. It does not necessarily benefit the professions as a whole, by delivering predominantly one-size-fits all training. It does not benefit many would-be entrants who are facing the prospect of paying £35,000-£50,000 in fees to secure paralegal employment at less than £20,000 per annum. It does not benefit society by limiting the opportunities for those with the right talents from accessing a legal career, or developing that career, by virtue of status-based or other artificial barriers to access and progression.
6.144 Not all of these problems can be readily ameliorated by regulatory reform to LSET. The move to clearer, more consistent, standards and outcomes is a critical first step in maintaining quality whilst delivering greater design flexibility to the education and training market. Better information will benefit consumers, entrants and employers, and assist regulators in making better, risk-based, assessments. The gathering and publication of information, in this light, can themselves be seen as critical regulatory functions; indeed, gathering information is regulation. However, standards and information must be developed in an appropriate institutional setting.
6.145 Both standard-setting and information gathering are collaborative activities. Standard-setting involves a regulator working with members of its regulated community, educators and researchers to understand and then describe the context, determine outcomes and the standard or level at which those actions are to be performed. Information-gathering also requires the collaboration of the regulated community; their understanding of why information matters and the purposes for which it is used can impact both the quality and quantity of data obtained. Collaboration is also essential if the culture of education and training and its regulation is to evolve. Regulation is seldom more than a necessary evil. This view is widespread in the legal services sector. The sector is adapting to a new regulatory environment, shaped by regulatory bodies that are still developing and lack, in some cases more than others, mature systems and structures. The sector has the capacity to be an adversarial and low trust environment. This is not to the benefit of LSET. In a rapidly changing environment providers (and regulators) need to learn best practices quickly and effectively. Regulators must facilitate and encourage, not just accredit and monitor.
Meeting information needs
6.146 Clear and correct information about all of legal education and training is essential for all aspiring lawyers. Good information about regulated and unregulated legal services providers is also essential for consumers. More transparency will build a better marketplace for law jobs and qualifications. In particular, information about any bottlenecks and barriers to entry to the professions should be accessible and transparent so that students and trainees are aware of the risks involved and understand what other pathways might also be open to them. This is particularly critical if sustained and greater diversity is to be achieved:
The need for advice and guidance is acute for less advantaged learners, whose parents may not be in a position to offer informed support, and whose schools may be less practised at scrutinising higher education information, and offering specialist advice on applying to more selective courses.
Bridge Group, (2011)
6.147 A range of significant information needs was highlighted in the first part of this chapter. The importance of diversity data in particular stands out and it is therefore recommended that legal education providers should publish annual diversity data in respect of their cohorts across the range of equality characteristics.
6.148 By comparison with other jurisdictions, notably the USA, statistical data on legal education in England and Wales are sparse and intermittent. Dixon’s report to the SRA specifically states that the:
SRA needs to collate and publish more detailed statistical information about students taking the LPC and those taking integrated degrees from the LPC providers in future.
Similarly, while the BSB/Bar Council Bar Barometer provides some very useful headline data, it too lacks granularity. For example, its failure to disaggregate BPTC ethnicity data by domicile or intention to practise in England and Wales severely limits the usefulness of those data.
6.149 The provision of appropriate information cannot be left to the individual professions or regulators but needs to be provided in a co-ordinated overview of the whole sector and for the whole sector. Openly available information is fundamental to enabling entrants and training providers to understand the complex LSET system that is developing. Open information would support the different professions and regulators to see the joint gains to be made by working together towards more rationalisation and simplicity in comparative qualification frameworks, to identify barriers to access better, and to facilitate research which would support all of these.
6.150 The recommendation is for an archive hosted as an open web-based research database facility in order to allow potential students, trainees, regulators, policymakers, providers, future researchers, general careers advisers, and anyone else interested in understanding the recent history of professional legal education in England and Wales, to gain a real understanding of the historical and current situation and trends. Regulators should provide and make accessible in searchable form information such as a ‘quarterly summary of performance measures and statistics’ (Dixon, 2012:16), data on numbers in training, and diversity statistics. So far as possible comparable and consistent data categories should be created to ensure year-on consistency and comparability across regulated groups. The information should be provided in a durable format to ensure longevity in the database.
Virtual advice shop (careers)
6.151 Together with the data archive an internet-based service should be set up providing clear, independent, advice on career routes and opportunities, including information on the range of diversity schemes, and funding. The advice shop needs to be designed to high accessibility standards and with discrete packages of age-group-related content. In addition to information about professions, the site could include diagnostic suitability or aptitude tests. Access could potentially, if funding allowed, feed through into individual face-to-face advice on careers. It could under particular conditions, such as where discriminatory systems or decisions are alleged, act as a portal to further information and advice from the regulatory body concerned.
Clearing house function
6.152 The LETR research remit also required consideration of ‘flexible education and training options, responsive to the need for different career pathways, promoting mobility within the sector and encouraging social mobility and diversity’. In order to promote such options a ‘clearing house‘ function should also be set up to facilitate fair access to work experience and to regulate movements across the sector. This clearing house could be set up under the aegis of the LSB or as a joint regulatory initiative. Its functions could include:
- providing a quality mark system for work placements that satisfy best practice standards for fair access;
- providing a central location for advertising work experience opportunities across the sector;
- supporting the sector in mapping and monitoring the comparability of qualifications and developing clear transfer protocols;
- hearing of final appeals from individual regulators’ decisions. In effect this would be a system for final decision on cases relating to movement across, between and among the different professional bodies and groupings, so that precedents might be developed in a transparent system for providing future guidance, assistance and planning for such mobility.
6.153 At present the cost of processing applications that might come from lawyers qualified abroad, or those seeking to transfer between different professions or wanting exemption from different parts of the system of qualification, is borne by each of the individual regulators and professional bodies. The proposal is that all costs will be borne by the clearing house, and dealt with on a more efficient basis by a small team constantly involved in assessing such issues. They would be able to take advice from the individual professions and regulators but as experience grows, this would be less necessary.
Legal Education Laboratory
6.154 A more radical suggestion would see the development of a ‘Legal Ed Lab’ to support these other activities and also assess and test changes to the market. This could be a site where new models of innovative entrepreneurship and the like can be encouraged in young lawyers, and where interplay between legal education and legal practice in all its forms can be encouraged. It could be supported by a range of collaborative and contract funding from a variety of sources, perhaps including the Legal Education Foundation.
6.155 Other jurisdictions have shown imagination and creativity in the development of new forms of support for trainees and young lawyers. Such innovation can be developed practically by a legal education provider, as in the Law Incubator Model from City University New York. There, the Community Legal Resource Network supports students who have graduated from City University New York Law School as they set up and run solo or small-group practices devoted in part to serving low-income communities that lack access to legal representation. In addition to legal content training in areas such as immigration law and employment law, the Incubator trains newly-qualified lawyers in the infrastructure of legal practice, eg, professional technologies, accounting, billing, etc. The model is a successful one, and has been adopted by other law schools such as California Western School of Law in San Diego, and the Illinois Institute of Technology in Chicago-Kent College of Law in Chicago.
6.156 The Legal Ed Lab could undertake to coordinate research into changing workforce structures and their implications for training needs. The increasing casualisation of parts of the legal services workforce produces some quality risks for consumers, and, longer term, for employers as it threatens to marginalise and alienate a significant number of highly qualified and motivated (mostly) young people who are finding the realities of a legal career very different from their expectations. Entity regulation provides the regulatory mechanism for addressing such issues, eg, through supervision requirements, best practice guidelines, and the auditing of risk-management capability, but this function requires intelligence that the Lab could help provide. The Lab could also stimulate thinking on innovation. Examining the educational models of innovative providers of legal services, including ABSs, could be a starting point. One recent ABS, for instance, has developed a model of training that involves legal assistants starting ‘at the bottom, the triage stage, work[ing] up through the process through the managing info stage, up into law, client management…‘. This legal services provider envisages a number of routes:
[legal assistants] may also want to go through the client route which is a big part of our business, not only the legal, we want people to get involved with marketing, business development, IT business info analysis, there is the costing….
6.157 Such flexible approaches to whole workforce development potentially develop and support the new forms of employment foreseen by Susskind (2010, 2012) and already emerging in the marketplace. An ability to gather quantitative and qualitative data on the changing occupational matrix of regulated legal services would enable regulators to make better risk-based decisions about the regulation of innovative ways of delivering legal services.
A Legal Education Council
6.158 It could be envisaged that the above functions are embedded within a sector-wide Legal Education Council with the remit to support the legal services sector in maintaining the quality of LSET and to assist the regulators in continuing oversight and review of the LSET system. It could have the following roles:
- oversight and expert advice to regulators and the LSB in a continuing review of LSET regulation;
- maintenance of a clear map to show systems of movement within and between different qualification routes;
- creation and dissemination of advice on standards, qualifications and equivalences, with guidance on educational methods;
- quality marks for work placements, and possibly national paralegal (voluntary) accreditation;
- harmonisation of transfer regulations, including AP(E)L for mature students;
- data pooling and publication;
- sustained development of a ‘shared space’, a community of educators, regulators, policy-makers and professionals working in provision of legal services, drawing information from other jurisdictions, other professions and other regulators to identify best practices in LSET and its regulation.
6.159 The Legal Education Council would bring together education providers, professional bodies, regulators and consumer representatives in order to carry out these functions. It would provide significant expert support to regulators and the LSB (supporting its responsibilities under s.4, LSA 2007) and perform a co-ordinating function within an otherwise complex and potentially fragmented regulatory matrix. The interests of the different stakeholders will be served by membership in the Council and it should therefore not need separate funding.
6.160 The need for greater co-ordination of LSET activity has been highlighted by every major review of legal education since 1934. The Ormrod Committee called for the creation of a standing Advisory Committee on Legal Education to bridge the gap between the universities and the professions; though an Advisory Committee was created, it never fully performed that function. The Benson Commission suggested some improvements, while Marre (1988:143-5) went considerably further in calling for the creation of a Joint Legal Education Council which would perform some of the functions highlighted above. ACLEC, which was intended to be the response to that call, in turn also proposed setting up, as a statutory sub-committee, a Joint Legal Education and Training Standards Committee to review the setting of standards, provide guidelines on minimum standards, and advise on ways of improving those standards (ACLEC, 1996:104-5). After 70 years of debate, progress on this matter alone would be a singular achievement for the LETR.
 Hadfield (2000) argues that the price dynamics of what is, fundamentally a non-competitive market for legal services are such that corporate and individual client interests are drawn into a ‘bidding war’ for legal resources. Corporations, as holders of far greater aggregate wealth, are not only in a stronger position to bid, but actively attract services to themselves by virtue of the fact that they are ‘a richer feeding ground’ for wealth extraction. This goes some way to explain why in legal services markets we see, in effect, excessive competition for entry and access to the corporate hemisphere, whilst private plight and social welfare sectors suffer significant levels of unmet need.
 See Literature Review. Note also Moorhead’s observation, in response to Discussion Paper 01/2012:
A better approach than regulating the content may be to research and provide information on legal education and training which could inform the decisions of students, firms and education/training providers and signal risks and the need for regulation as appropriate.