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Regulating education and training in a liberalised
legal services market:
The experience of England and Wales
Julian Webb
University of Warwick, UK
(Melbourne Law School,Aus
from August 2014)
ILECVI , 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 evaluation04 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.” (ABATask Force,
2014:29)
 A. Sherr and S.Thomson, ‘Tesco Law andTesco 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: LawTeacher, 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 andTraining’ (2013) 24(2) Stanford Law & Policy Review 533-70.
 J.Webb, ‘The LETRs (Still) in the Post:The Legal Education andTraining Review
and the Reform of Legal Services Education andTraining – 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).

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Regulating education and training in a liberalised legal services market

  • 1. Regulating education and training in a liberalised legal services market: The experience of England and Wales Julian Webb University of Warwick, UK (Melbourne Law School,Aus from August 2014) ILECVI , London 2014
  • 2.  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
  • 3. (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.
  • 4.  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.
  • 5. 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.”
  • 6.  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)
  • 7. 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?
  • 8.  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)
  • 9.  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 evaluation04 February 2015 9
  • 10. 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
  • 11. “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.” (ABATask Force, 2014:29)
  • 12.  A. Sherr and S.Thomson, ‘Tesco Law andTesco 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: LawTeacher, 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 andTraining’ (2013) 24(2) Stanford Law & Policy Review 533-70.  J.Webb, ‘The LETRs (Still) in the Post:The Legal Education andTraining Review and the Reform of Legal Services Education andTraining – 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).