Responses to the Legal Services Board’s (LSB) legal education and training framework have revealed broad opposition to its proposal to invoke statutory powers to ensure frontline regulators fall into line behind the LSB’s vision.
The breadth of feeling is apparent now the LSB has published the 16 responses to its consultation on proposals for draft guidance on education and training – which ended on 11 December – from the frontline regulators, representative bodies, consumer advocates and education providers.
The consultation on guidelines in the aftermath of the Legal Education and Training Review (LETR), which reported finally in June 2013, invited views on five broad outcomes. These were aimed at ensuring regulators were not too restrictive when drafting regulations and incorporated “flexibility” in their approach to education and training.
Controversially when the consultation was launched in September, the LSB announced it planned to use powers under section 162 of the Legal Services Act to compel regulators to stick closely to its agenda.
Chairman David Edmonds said at the time: “We have seen already in the responses to the LETR a range of interpretations of its meaning. There is a real risk that regulators will not share the same interpretation and will proceed down different, potentially conflicting paths.” But he denied the LSB wanted to duplicate the regulators’ plans.
The issue of the LSB asserting its view on education and training is sensitive in the context of the Ministry of Justice’s ongoing review of legal regulation, to which submissions by the Bar Council and Law Society have called for a partial return the days before arms-length regulation, involving making the bodies themselves responsible for standard-setting, authorisation and training.
Responding to the consultation, the Bar Council argued the LSB’s statutory role was simply to “assist” with education and training rather than “directing”. It continued: “So far as the Bar is concerned, the LSB’s intervention is unnecessary.” The Bar Council was considering its own response to the LETR report and although the LSB said it was not trying to duplicate regulators’ plans, “that is likely to be the effect of the LSB’s approach”.
The Law Society said “we do not understand why it is appropriate for the LSB to issue a statutory direction” so early in the process, when the Solicitors Regulation Authority (SRA) had already announced an approach “in many respects consistent with that set out by the LSB” and other regulators were considering their post-LETR recommendations.
Underlining the point, the society said: “A direction of this sort has significant consequences for regulators and needs to be issued only where it is proportionate to do so.” Further, “it should only be issued in circumstances where it appears likely that the [frontline regulators] may not comply or where there is strong need for it. We do not believe that there is evidence of either here.”
Key regulators also shared concerns about the statutory underpinning of the LSB’s guidance. The SRA said: “We question whether statutory guidance is necessary or appropriate at this stage”. The Bar Standards Board judged the LSB would be “exceeding its powers to issue its proposed statutory guidance”.
A joint response by the Chartered Institute of Legal Executives and its regulatory arm, ILEX Professional Standards, raised doubts about the statutory direction, which it said “does not appear to be either proportionate or risk-based” – meaning the bodies were “unconvinced” the LSB would be right to issue it.
The LSB is expected to publish its response to the consultation next month.