Flexible friends

Posted by Chris Kenny, chief executive of the Legal Services Board

Kenny: need to balance obligations for education between the individual and entities

If there’s one thing guaranteed in life – apart, of course, from death and taxes – it’s that everyone will, at some stage, be affected by an issue relating to legal services or the law. Over recent decades, the legal services sector has become increasingly diverse, both in terms of the people who practise, and in terms of the communities and individual needs those people serve.

I’m always reassuringly struck, when I speak to people on the frontlines of legal services provision, by the strength of feeling on the importance of access to justice for everyone in society. The increased diversity in legal services provision which the Legal Services Board’s (LSB) reforms have encouraged has created new opportunities for those in need of legal advice to access legal services in what have been and continue to be tough times for many.

In the same way, it’s now necessary for those in the field of legal education to diversify their provision, to encourage a more accurate reflection of the changing demographic in the legal services workforce, and to support the growth of an increasingly agile legal sector.

It’s now over three years since the chair of the LSB, David Edmonds, delivered the Lord Upjohn lecture in 2010. In this speech, he challenged the regulators to address what seemed to be a paradoxical state of affairs in legal education. Why was there apparently greater and greater specialisation within the legal profession at the same time as increasingly fluid boundaries between its traditional branches?

Three of the legal regulators in particular responded to the challenge, and in June 2013, following an extensive period of research and development, the Solicitors Regulation Authority (SRA), Bar Standards Board (BSB) and ILEX Professional Standards (IPS) jointly published the Legal Education and Training Report.

This report represented the culmination of two years’ work to fundamentally review the evidence base for education and training requirements across both regulated and non-regulated services in England and Wales. At its heart, it recommended far greater variety and flexibility of approach in legal education, both for new and existing lawyers.

Yet, while the report was firm on the need for reform of the legal education system, a range of quite varied interpretations emerged in response to its publication. This represented a real risk to progress, opening up the unsatisfactory possibility that regulators would choose to take significantly different routes to implementation, which could potentially conflict with each other.

Part of our role at the LSB, as the oversight regulator, is to ensure that – even if the details of the journeys are different – everyone is nonetheless headed in the same direction at broadly the same speed. At the beginning of March 2014, and following an in-depth consultation process which began in September 2013, we published statutory guidance for legal services regulators on education and training.

This is designed to help all regulators, not just those who commissioned the LETR, to proceed with their detailed plans for implementation of the recommendations of the report, and supports the report’s findings.

Our guidance sets out a number of clear recommendations to regulators, focusing on creating greater flexibility while maintaining professional standards.

For a start, education and training requirements will, in future, need to focus much more on core competencies. This means that learning outcomes for legal education will need to explicitly state what an individual must know, understand, and be able to do, at the point of authorisation, in order to perform their job to an acceptable standard. In turn, providers of legal education will need to be flexible in determining how best to shape training which enables learners to demonstrate these outcomes.

In fact, the increased focus on outcomes will free up providers to deliver innovative and effective legal education without the need for prescriptive inputs from regulators. Historically, regulators have relied on prescribing detailed education and training regulations and on high barriers to entry as the primary means to assure quality. The approach recommended in the guidance will help to align the legal services sector in England and Wales with many other regulated professions, both across the UK and globally.

It’s also important that the standards which are set find the right balance between competencies which are required at the point of authorisation, and those which can and should be fulfilled through ongoing learning and development.

The medical profession, for example, sets different outcomes-focused competencies at different stages of professional development for its trainees and practitioners, according to what is determined as appropriate for the professional role which the individual will be authorised to undertake.

The guidance also recognises the importance of balancing obligations for education between the individual and entities, both at the point of entry, and as the individual’s legal career progresses. The recommendations in the LETR report and the LSB’s guidance should provide greater flexibility – and accountability – for firms, students, educational providers and the legal services market itself.

I’m personally very pleased with the pro-active and determined way in which regulators have responded to the challenges set out in the report. Indeed, the LSB has no intention of imposing any particular timetable or bureaucratic monitoring scheme for implementation. We have already said that those regulators with clear plans in broad accord with the guidance, which they are making progress against, will be given space to deliver.

However, if the benefits of the liberalised legal services market of the future are to be fully realised – and these benefits should include greater access to the legal profession for members of historically under-represented groups, greater diversity of provision, and greater access to justice itself for society as a whole – it is absolutely vital that a flexible, more agile labour market is allowed to develop.

As regulators now move into the implementation stage of reform, I look forward to seeing those benefits continue to emerge.

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