The quality of our legal system and its lawyers is recognised worldwide. The national and international provision of legal services contributes billions of pounds annually to our economy. The high standard of entrants into the legal professions as currently regulated has been made possible by a widely respected system of legal education and training in England and Wales, which has continued to evolve over the years at what, until recently at least, may fairly be described as a leisurely pace.
Save for the Report of the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC) in 1996, whose recommendations were never implemented, the last major sector-wide review of legal education and training was undertaken by Lord Justice Ormrod in 1971. More recently, the Law Society Training Framework Review in 2005 and the Wood Reports for the Bar Standards Board in 2008 and 2011 have made progressive changes but have been concerned only with their respective constituencies.
The current legal services market
However, today’s expanding legal services market is in a state of rapid development and transition, triggered by regulatory and other developments, primarily as a result of the Legal Services Act 2007 which set out eight regulatory objectives in respect of the supply of legal services as follows:
- protecting and promoting the public interest;
- supporting the constitutional principle of the rule of law;
- improving access to justice;
- protecting and improving the interests of consumers;
- promoting competition in the provision of services;
- encouraging an independent, strong, diverse and effective legal profession;
- increasing public understanding of the citizen’s legal rights and duties;
- promoting and maintaining adherence to the professional principles set out.
The 2007 Act was passed with the intention of liberalising the legal services market by, for example, allowing Alternative Business Structures and encouraging innovative new models for the provision of legal services. The continuing advances in technology; globalisation; demographic and social changes; demands for better value for money and the rise of consumerism have all led to altered expectations of what is required from legal advisers and those who train them.
At the same time, growing student numbers, the escalating costs of qualification and difficulties in finding employment after qualification have also resulted in calls for reform of the current system of legal education and training. There is the further complication that, save in the field of corporate advice and disputes, the background against which reform falls to be considered is one of cuts in the availability of legal aid advice and representation for individuals in the vast majority of civil and family disputes and ever tightening limitations on the availability and funding of criminal legal aid.
The Legal Education and Training Review
In January 2011, the Solicitors Regulation Authority, the Bar Standards Board and ILEX Professional Standards announced the establishment of a joint fundamental Review of the legal education and training requirements of individuals and entities delivering legal services. The Review, as established, comprises a research stage; consideration by the three commissioning regulators (individually and where appropriate collectively) of the approach to any consequent reform of their education and training requirements; and any formal consultation required as a result of the regulators’ decisions on policy.
The UKCLE Research Consortium, led by Professor Julian Webb of the University of Warwick, was appointed to conduct the research stage of the Review in May 2011.
We were also appointed as Co Chairs of the Consultation Steering Panel for the research stage of the Review, which includes representatives of key stakeholder groups, including practitioners, legal education and training providers, consumers and other regulatory bodies. The Panel’s task has been to provide advice and information to the research team and regulators during the research stage of the Review. Through six meetings of the Panel and additional meetings with individuals and groups, we have also endeavoured to enable the research team to receive directly the views of all those interested in the outcome of the Review.
However, the report which follows and the content of the recommendations are solely the work of the research team, led by Professor Webb.
The report is an independent report to the commissioning regulators. Its ambit is England and Wales, although education and training systems in other jurisdictions are considered, where appropriate.
It is the product of the academic work of the research team. It is intended to provide to the regulators the evidence needed by them to make decisions on education and training policy going forward.
The report does not seek to predict the future of the legal services market, since many potential drivers of change are still emerging. Nor does it set out in detail a strategy or prescription for future legal education and training. The focus is on systems and structures, rather than content.
In relation to some issues, such as common professional training for solicitors and barristers, the report does not include a recommendation. It describes the benefits for the system of such a requirement as equivocal at best and invites further discussion.
The approach of the report is first to set out the context in which the commissioning regulators will be considering the future of legal education and training, given their respective roles; and second to focus on legal services education and training, rather than academic education in the law, thus reflecting the need to assure the quality and competence of all those who deliver legal services, whether or not under an established professional title.
The key messages
The report contains a number of key messages underlying its recommendations, which, as we believe, deserve emphasis.
Quality and Competitiveness
As already noted, our legal system has served us well for many years. While improvements can always be made, it is vital to ensure that the quality of our lawyers and the legal advice which they give is maintained. We must build on existing strengths. While new topics of learning are identified in the Report, there are areas of required skills which do not change and must continue to be taught. It is also vital that the international competitiveness of English and Welsh law and legal education should be maintained and safeguarded.
The uncertainty and fluidity of the current legal services marketplace means that flexibility and responsiveness will be essential. So, for example, new pathways to qualification (such as apprenticeships), ease of transfer between disciplines and increased flexibility in training regimes need to be vigorously explored. Also, technology will continue to reshape the manner in which law is taught and practised.
We must encourage and harness the abilities of those who should succeed on merit but who currently fail to complete the required legal education and training or abandon their careers in the law. This must involve increasing efforts to promote diversity and social mobility within the workforce of providers of legal services. The report rightly highlights the need for greater transparency and easily accessible information about the opportunities for careers in legal services.
As the report makes clear, the teaching and maintenance of professional ethics and values are central to the assurance of integrity in the administration of justice and quality across the entire legal services sector. Both require emphasis in the course of the education and training of suppliers of legal services.
New ways of learning
Learning in the workplace is critical for the effective delivery of legal services. Hitherto, the requirements of pupillage for the practising bar and the training contract for solicitors have been key to the qualification and quality assurance of practising barristers and solicitors. However, there may be different configurations of ‘supervised practice’ in an increasingly wide range of practice contexts. The perceived transition from content-focused to outcomes-focused learning in legal education requires analysis. Increased consistency and sharing of standards is required. In addition, continuing learning must support the maintenance of ongoing competence and the use of such techniques as re-accreditation require further considered thought. Continuous professional development may need reform in some parts of the legal services sector.
There will be a number of challenges for regulators in the future. These will include the question of how to identify and regulate general legal advice and assistance and to decide whether the regulatory framework itself is fit for the future legal services market. For example, the report notes the lack of an overall and coherent legal education system as such. That being so, and in order to avoid a tournament of regulators as to who will regulate whom, the regulators are encouraged to consider greater collaboration. Examples of this collaboration include a data archive, an advice shop, a hub of innovative practice; a legal education laboratory and clearing house; and a Legal Education Council/Board/Authority. The report also identifies a number of over-arching issues for the regulators, designed to promote common learning outcomes and consistency.
The need for further work
There are a number of issues identified in the Report, which require further research or investigation. They include, without ascribing any order of priority, the options for activity based education and regulation; the unregulated legal services sector (the research team only having examined to any extent the activities of paralegals and some independent unregulated practitioners); consumer experience of legal services; and the collection of data which may increase understanding of what impedes the access to and progression of meritorious students in the legal services sector.
This long awaited report provides invaluable material and comment on which to base future decision making by those charged with regulating and assuring the ongoing stability and success of legal services delivery in England and Wales.
Once completed, the Legal Education and Training Review will enable the regulators to set out and implement a strategic plan for assuring the competence and ethical conduct of legal practitioners in the rapidly changing legal services market.
We take this opportunity of thanking all those who have contributed to the production of the report, including, in particular, the research team led by Professor Julian Webb.
|Dame Janet Gaymer DBE QC (Hon.)||Sir Mark Potter|