LSB presses on with statutory guidance forcing regulators to liberalise education and training

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5 March 2014

Edmonds: more flexible labour market needed

Statutory guidance that requires legal regulators to move away from assuming would-be lawyers have to spend a certain amount of time training before they qualify was published yesterday by the Legal Services Board (LSB).

The guidance, issued in response to the Legal Education and Training Review, outlines in broad terms how the LSB expects the regulators to implement the review.

Several regulators and representative bodies had objected to the LSB issuing statutory guidance, but it has pressed on.

While there is no specific timetable, the LSB made it clear that it expects regulators to get on with reform, and said the statutory nature of the guidance “provides a clear basis for the LSB to seek explanation and take necessary action if any approved regulators do not deliver”.

The guidance, amended following a consultation to which 16 responses were received, said the LSB expects regulators in time to have in place regulatory arrangements for education and training that deliver five outcomes:

  • Education and training requirements focus on what an individual must know, understand and be able to do at the point of authorisation;
  • Providers of education and training have the flexibility to determine how to deliver training, education and experience that meets the outcomes required;
  • Standards are set that find the right balance between what is required at the point of authorisation and what can be fulfilled through ongoing competency requirements;
  • Regulators successfully balance obligations for education and training between the individual and the entity both at the point of entry and ongoing; and
  • Regulators place no inappropriate direct or indirect restrictions on the numbers entering the profession.

The guidance, aimed at increasing flexibility in the training regime, set out how these can best be achieved.

It highlighted some key themes of the new world of education and training, such as enabling multiple routes to qualification – “with no one route being the ‘gold standard’” – and focusing on the activity more than the role (or title) of the person providing it.

The oversight regulator sought to sweep away traditional assumptions around legal education and training. “The LSB does not support the view that moving away from time-served models would be detrimental to the consumer,” it said.

“Traditional, time-served models may be justifiable in certain circumstances, but it cannot be assumed that they will always present the best and most proportionate way of assuring competence in line with the outcomes that a regulator wishes to secure.”

It also said: “There should be no assumption that the historical focus on high barriers to entry at the expense of post-authorisation tools will always be the most effective, or the most proportionate, way of delivering the outcomes and managing risk.”

The LSB said entry requirements should focus on competence, by which it meant “the minimum skills, knowledge and behaviours that are required to satisfactorily provide authorised legal services”. It would then be up to providers “to differentiate themselves by providing service levels above the minimum levels required by regulation”.

LSB chairman David Edmonds said: “My view has always been that a liberalised legal services market will function more effectively if there is a more flexible labour market. The LSB believes that this can – and must – be achieved without compromising professional standards.

“The statutory guidance is designed to be a catalyst for modernisation of the regulatory framework for education and training. We look to the frontline regulators to implement that guidance in ways that add flexibility to regulation.”

Simon Thornton-Wood, head of education and training at the Bar Standards Board, responded: “As we made clear in our response to the consultation, we believe that the LSB is exceeding its powers by issuing statutory guidance; and it is not necessary, in our view, to do this.

“The challenge of increasing flexibility in legal education and training is a complex one and there are no straightforward answers. We believe that frontline regulators are best placed to formulate their own approach, tailored to the needs of their respective profession. We will be publishing details of our plans later this spring.”

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