Martin Partington: Spotlight on the Justice System

The report from the Legal Education and Training Review, Setting Standards: The future of legal services education and training regulation in England and Wales, was published in late June 2013. I have been mulling over how I should treat it in this blog for some time. It is long – over 370 pages. It contains 26 recommendations. To be honest it is not an easy read.

For those readers of this blog who those coming new to the study of law – who as you know are my ‘target audience’ – you can rest assured that there are no immediate changes to Legal Education that will be made.

The reason for this is that the Review did not have any remit to direct what changes should be made to the system of legal services education and training (LSET) that exists in England and Wales. It merely sets out its views on factors that should be taken into account by the professional regulatory bodies that established the review in the first place: the Solicitors Regulatory Authority, the Bar Standards Board and ILEX Professional Standards. These bodies will have to decide what they are going to do with the report and this will take some time. Any changes to legal education and training arising from this report will not occur for a number of years.

That said, there are recommendations in the review which will be introduced and which will affect both law students and qualified professionals in the years ahead. I set out here a summary of what I regard as the main recommendations

1. Competence

The review recommends that there should be a more detailed definition of what it means to say that a person has the competence to be a lawyer. To achieve this, there needs to be a robust and systematised range of outcomes and standards, coordinated between the professions, which would demonstrate that initial competence is achieved.

• Learning outcomes should be prescribed for the knowledge, skills and attributes expected of a competent member of each of the regulated professions.
  
• Such guidance should require education and training providers to have appropriate methods in place for setting standards in assessment to ensure that students or trainees have achieved the outcomes prescribed.
• Learning outcomes for prescribed qualification routes into the regulated professions should be based on occupational analysis of the range of knowledge, skills and attributes required. They should begin with a set of ‘day one’ learning outcomes that must be achieved before trainees can receive authorisation to practise.
  

Introduction of the idea of ‘day one’ learning outcomes is probably the most innovative aspect of the report. It would enable those who had demonstrated that they had acquired the skills determined to be needed on ‘day one’ of a person starting to practice should be able to achieve the authority to practise from that date. This could mean, for example, the end of 2 year training contracts for solicitors. New solicitors could be authorised to practice once they demonstrated their core competence.

2. Content

As regards the content of courses,

• LSET schemes should include appropriate learning outcomes in respect of professional ethics, legal research, and the demonstration of a range of written and oral communication skills.
• The learning outcomes at initial stages of LSET should include reference (as appropriate to the individual practitioner’s role) to an understanding of the relationship between morality and law, the values underpinning the legal system, and the role of lawyers in relation to those values.
• Advocacy training across the sector should pay greater attention to preparing trainees and practitioners in their role and duties as advocates when appearing against self-represented litigants.
• Learning outcomes should be developed for post-qualification continuing learning in the specific areas of professional conduct and governance, management skills and equality and diversity (not necessarily as a cyclical obligation).
• There should be a distinct assessment of legal research, writing and critical thinking skills  in the Qualifying Law Degree and in the Graduate Diploma in Law.

There are also more detailed recommendations about the need for better training in will writing and advocacy (for solicitors) and the use of mediation (for barristers)

3 Supervised practice

The Review regards periods of supervised practice as important. Thus

• LSET structures which allow different levels or stages (in particular formal education and periods of supervised practice) to take place concurrently should be encouraged where they do not already exist.

I strongly agree with this idea; the understanding of law is enhanced by seeing its application in practice. But the review does not recommend that this be a mandatory feature of LSET.

• Supervisors of periods of supervised practice should receive suitable support and education/training in the role. This should include initial training and periodic refresher or recertification requirements.

4 Continuing professional development

The review is most unhappy about current arrangements for undertaking CPD. It says, bluntly, that “The majority of CPD schemes in the legal services sector are out-of-line with recognised best practice in professions generally and by comparison with ‘leading edge’ schemes for lawyers in other jurisdictions… The potential importance of CPD to ensuring continuing competence highlights the need to create schemes that are effective at supporting useful learning and reflection, and provide appropriate quality assurance.” It recommends a series of changes to make CPD more effective. I am sure that these recommendations will be taken forward.

5 Apprentices, paralegals and work experience

The Review makes a number of interesting comments on the importance of developing apprenticeship schemes (similar to those already offered by CILEX) to permit a non-graduate route of entry to the legal profession. At least part of the motivation for these recommendations is that such routes to entry may be more affordable than the current norm of a three year degree followed by a further year of professional study

It also notes that law firms are increasingly using para legal staff to provide legal services; it does not at this stage think there is any need to regulate paralegals, It makes a further interesting suggestion. ” In the context of the significant and substantial changes to both the private and public funding of legal services, there may be a role for independent paralegals in delivering well-priced quality services outside the currently regulated market. Further work should be undertaken to explore the potential of licensed paralegal schemes.” This could well create a context for the development of new forms of legal practice.

To ensure that those seeking work experience get a fair chance of getting an internship or other work experience, the Review recommends:

• In the light of the Milburn Reports on social mobility, conduct standards and guidance governing the offering and conduct of internships and work placements should be put in place.

6 Next steps

Given that this review is the start of a process, it also recommends:

• A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice.

• In the light of the regulatory objectives and the limited engagement by consumers and consumer organisations in the research phase of the LETR, it is recommended that the regulators ensure that appropriate consumer input and representation are integrated into the consultation and implementation activities planned for the next phase of the LETR.

My question is whether these recommendations will in fact match a world in which increasing numbers of Alternative Business Structures are being created, and in which the cost of legal education is so high. What do you think?

To read the report go to http://letr.org.uk/the-report/index.html