Presentation to the Regulating the Legal Profession Conference in Dublin, 25 November 2011

1. 2020 vision?
Understanding the role of legal education and training
in regulating a liberalised legal services market
Julian Webb
Conference on Regulating the Legal Profession,
University College, Dublin,
25 November 2011

2. Context: Legal Services Act 2007
• Market liberalisation rather than deregulation
• Facilitates market in regulation (competition between frontline
regulators)
• Regulatory objectives (s.1)
• 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.
- cp: cl.9(2)(a)(ii) Legal Services Regulation Bill

3. The regulatory objectives (s.1)
(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.
- Cp: cl.9(4)(a)-(f) – no reference to the rule of law, access to
justice, diversity, or public understanding

4. David Edmonds - Upjohn
Lecture, November 2010
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.”

5. Legal Education and Training
Review
• Joint project of BSB, IPS, SRA
• Review of the regulation of E&T for the legal
services sector - so different and wider
• Commenced in May 2011; due to report in
December 2012
• Evidence-based approach
• Driven by research team (of 6)
• Consultation Steering Panel (CSP) chaired
by Dame Janet Gaymer and Sir Mark Potter

6. LETR: phases and outputs
Phases:
Interim outputs:
• Literature review • Briefing/discussion papers
• Literature Review (draft Jan)
• ‘Contextual analysis’ • First consultation paper (March)
• Second consultation paper (July)
• Workforce projection • Interim recommendations (Oct)
and training needs
(to 2020)
• Recommendations
Final report and recommendations
(Dec 2012)

7. Where are we now?
• Project team and infrastructure –
including website at letr.org.uk
• Completing draft literature review and
electronic bibliography using ‗Zotero‘
(future public resource).
• Completing review of approved
regulators‘ current training regulations.
• Started surveying existing competence
frameworks in the sector.
• Commencing empirical work for Phases
2 and 3 (most of the fieldwork will not
start before January).
• ‗Pulse survey‘ of CSP views on LSA
2007.
• Otherwise too soon to talk about
findings.

8. LET as a regulatory tool –
speculations and challenges
• Complexity – range of issues which will
each impact decisions on focus, form and
reach of regulation.
• Some key issues emerging:
– In whose interest?
– Assuring ‗competence‘
– Standardisation and reach
– Proportionality of regulation

9. In whose interest?
• Is LET regulation designed ultimately to protect the
interests of
– The profession? (maintain standards, but also protect
status, control supply, limit competition from NQSPs)
– The providers? (autonomy; need to maintain freedom of
choice and competition in the market for legal education)
– The consumers? (Which consumers? Students and
trainees, or the ultimate users of legal services?)
• The challenges of access, diversity and social mobility
• Is this now the tiebreak question: what policy and
regulatory choices are most likely to maximize net
consumer welfare ? (cf s.1(1)(d) LSA 2007).

10. CSP pulse survey:
average predicted impact of
Legal Services Act Reforms (17 responses)
OVERALL
Consumers
Law Students and Trainee Lawyers
Educators (LLB Providers, GDL and ILEX)
In-House Providers
Large Regulated Providers
Educators (BPTC and LPC)
Paralegals and Unregulated Providers
Third-Sector Providers
Medium-Sized Regulated Providers
Small Regulated Providers
MAJOR NEGATIVE MINOR NEGATIVE NO MINOR POSITIVE MAJOR POSITIVE
CHANGE CHANGE CHANGE CHANGE CHANGE

11. Assuring ‘competence’
Tearing up
assumptions: in
the real world... What about
• Level of qualification Input vs output ‘Competence+’?
may be only weakly
correlated to
• Too much focus on • PQ specialisation - a
input , not enough step beyond
competence regulation?
• Relationship between on output?
• to what extent do
cost and quality is NOT • COBR and OFR
regulators want to
linear encourage
• ‘Quality’ is more than competition on quality
‘technical’ as well as price?
competence – soft
skills, systems, etc

12. Standardisation and reach
• How consistent are existing standards, and how much does it matter?
– Does the current system focus too much on regulation of title, not activity (title as
limited proxy for competence)?
– What should the role of entities be (and function of entity regulation as regards
training)?
– Extension of training regulation into the unregulated sector?
• What if we were to shift the emphasis towards ‗national‘, activity-
based, standards?
– Flexibility of training and widening access/diversity
– Rationalisation and recognition of PQ specialisation (eg mapping against NQF
levels)
– Possibility of adoption by representative bodies in non-regulated workforce
(voluntary self-regulation)
– Competition between regulators?
– Cost and complexity?
– Impact on consumers ?
– Challenge from title-based interests?
• Links to proportionality…..

13. Proportionality
• How to protect consumers without
disproportionately restricting (supply-side)
access to the marketplace
– Cannot rely wholly on the market –weak
demand side (in most vulnerable sectors)
– Training (compliance) costs and quality:
avoiding the ‗market for gold plate‘ as well as
a market for ‗lemons‘
• Less input regulation, but more
monitoring/enforcement?

14. In conclusion (or not…)
• 2020 vision: breadth and depth of focus
• ―Once in a generation opportunity‖
• Will it make a difference?
• Gradualist approach or ‗big bang‘?
• Implementation rests with the frontline
regulators