Breaking new ground?

Derek Wood QC assesses the first phase of the Legal Education and Training Review, the June 2013 Report by the appointed Research Team, and examines its value.

This lengthy Report was commissioned by the front-line regulators of the three main branches of the legal profession – the Institute of Legal Executives, the Bar Standards Board and the Solicitors Regulation Authority (ILEX, BSB and SRA)–who have established an overall Legal Education and Training Review (LETR) to consider the future of legal education and training in the light of the Legal Services Act 2007. The Report is addressed primarily to those regulators. It is the first phase of the LETR. The LETR itself had been prompted in large measure by remarks circulated by the Chairman of the Legal Services Board that the nation’s legal education and training system is “unfit for purpose” or “fit only for a bygone age”. The Report does not support these statements. The regulators, having received the Report, will consult their members on its findings. The BSB will ask the Bar for its views in due course.


Scope of the Report

The research team which has written the Report has conducted a wide sweep. It reports on legal services education and training, i.e. the training of all those who deliver legal services, including services not regulated by the 2007 Act. The acronym ‘LSET’ is used throughout. The Report is not limited to the education and training of practitioners regulated by the regulators who commissioned it. It comments on other regulated providers, such as patent attorneys and licensed conveyancers, and unregulated providers. It has a great deal to say about paralegals. It takes us from the cradle of the Qualifying Law Degree and the law conversion course to the grave of CPD.

The research team and the management of its work

The research team was appointed after competitive tendering. Headed by Professor Julian Webb (University of Warwick), it included Professor Jane Ching (University of Nottingham Trent), Professor Paul Maharg (formerly University of Northumbria, now Australian National University) and Professor Avram Sherr (Institute of Advanced Legal Studies), aided by various research assistants. It did not include any practising lawyer. It was managed by a committee representing the three regulators who commissioned it. A Consultation Steering Panel (CSP), chaired jointly by Dame Janet Gaymer QC and Sir Mark Potter, was appointed, without executive function, to attend meetings and observe and comment on the research as it developed. Interested bodies were invited to appoint representatives to join the CSP. The author of this article was the Bar Council’s representative. The Young Barristers’ Committee and the BSB were also represented. The BSB participated on the understanding that its own recently commissioned and mainly implemented reports on the Bar Course (BPTC) and pupillage would not be replaced. The BSB’s third report, on CPD, was held in abeyance pending the outcome of the Report.

Methodology

The research was essentially an opinion-and attitude-gathering exercise. It began with a literature review of monumental proportions, harking back to the last comprehensive review of the subject by the Ormrod Committee in 1971. The literature includes a large body of international academic research on higher and professional education generally as well as documents more closely focused on the practising legal professions around the world. The team devised and conducted a complex questionnaire. It had face-to-face meetings with City law firms, focus groups, senior lawyers, young lawyers, academics and many others, including the Inns of Court. It received written responses to its discussion papers from interested bodies including the Bar Council and some Specialist Bar Associations. What it did not do was carry out any direct observation of the delivery of training anywhere. The Report correctly claims to be “evidence-based”, but the nature of the evidence is, apart from the statistics, essentially secondary evidence, i.e. the views, opinions and research results of others, collected from various sources and synthesised into a whole.

The Report is reputed to have cost £600,000. Rarely does it break new ground, taking us beyond points which we have already reached, or were within clear sight. It is regrettable that the amount of time and effort spent by the team and its numerous contributors have not provided us with more value.

26 Recommendations

The Report contains some 26 recommendations. The team calls for a strengthening in the training of lawyers in essential skills, greater consistency in education and training, a toughening up of CPD, and improved information on career opportunities. Greater access to the profession is recommended, and greater mobility within it.

To get to these recommendations the Report devours some 270 pages of narrative text (excluding references) plus five appendices. It is difficult to read. Its language is abstract and at times opaque. It is repetitive. It gives the impression of having been written by a number of hands. The literature review casts a dark shadow over the rest of the team’s work. The Report ends up as an exercise in drawing together what has been written and said by others so that the team is frequently unable to go beyond a statement of the obvious. Its recommendations are couched in the most general terms. The detailed manner in which they might be implemented, and the cost of implementation, are hardly addressed. The team sensibly does not limit itself to the materials submitted by the official institutions of the profession, such as the Bar Council, Council of the Inns of Court (COIC) or the Law Society. It freely quotes the opinions of interested and articulate individuals, but it is impossible to know how representative those quoted remarks are of opinion as a whole. For example, a quoted remark by a recent BPTC student that the course in Resolution of Disputes out of Court does not lay enough emphasis on mediation ends up as Recommendation 13, without (apparently) any independent review of the syllabus or comment from the providers of the course. Again, out of the mass of research publications consulted we have to assume that the team’s citations can be justified. It is impossible for readers to make judgements of their own.

The team is thankfully able to express support for much of the status quo: it acknowledges the high international reputation of English law, English lawyers and English legal education. It sees no case for changing the basic components of the Qualifying Law Degree or the law conversion course. It recognises the importance attached by the Bar, solicitors and legal executives to supervision in chambers or the office as an essential component in training and qualification. It is complimentary about the standard of advocacy training in the Inns of Court. The team finds (para. 2.175) that there is no evidence “that the system, or any one professional regimen, is fundamentally ‘broken’. Indeed there is substantial evidence of the strength of the system, both from domestic and international viewpoints.” However, the Report identifies a number of areas in which improvement is thought to be required. So far as the Bar is concerned, many if not all of the points raised have previously been dealt with by the BSB and its working parties, or by the Bar Council, or were already the subject of detailed work in progress at the date of the Report. Brief comments are offered below on some of the main points argued in the Report.

Professional ethics
Table 2.4 of the Report shows how different branches of the profession rank in importance the items of knowledge which competent lawyers must possess. In all categories of lawyer professional ethics is ranked first or second. (Unsurprisingly the law of contract and tort compete for 3rd and 4th places.) Having correctly identified the importance of professional ethics the team jumps to the conclusion that teaching in the subject should be “strengthened”. It does not pause to analyse present teaching, much less to consider, given the importance which the profession attributes to it, whether it might already be taught quite well. It does not therefore specify the respects in which current teaching is deficient; and it is disappointing that there are no suggestions as to how the syllabus can be improved. In fact, professional ethics has become a separately examined subject on the BPTC and it is taught extensively by the Inns and Circuits to pupils and new practitioners. The Inns’ Advocacy Training Council currently has a working party looking at the scope and teaching of professional ethics with a leading specialist academic. Other branches of the profession will be examining their own training and making their own plans. Unfortunately there is nothing in this Report to help us in that work.

New skills?
Corresponding with Table 2.4, Table 2.5 shows how the profession ranks the different skills and attributes which the competent lawyer must possess: communication skills (oral and written), the ability to explain, analytical skills, problem-solving and attention to detail attract high scores. Management skills also rank highly. These two Tables in combination record what might be regarded as the traditional armoury of the good lawyer. Will these requirements change? Chapter 3 discusses “trends and developments in the legal services market.” They include changes in funding (less legal aid, Jackson reforms), more specialisation and increased regulation. There is a diversion into what might emerge as the law of Wales. ABSs are discussed with some justifiable caution and much is made of new technology. There is a strong implication throughout the Report that these various changes will require new training and new skills. But it is very difficult to discover from this Report what, apart from an enhanced ability to exploit new technology, these might be. Is it too reactionary to suggest that Tables 2.4 and 2.5 are unlikely to undergo much alteration in the foreseeable future?

Setting standards
Chapter 4 embarks upon a lengthy discourse, drawing on much academic research and international experience, concerning the definition of competence, competencies, learning outcomes and standards. This is a notoriously difficult and inconclusive subject, involving a contested combination of objective criteria and personal judgement. One might argue that, with the benefit of Tables 2.4 and 2.5, the less that is said the better. However, the research team recommends that the frontline regulators should start work “on articulating a common framework for legal services as a whole.” Standard assessment procedures are advocated, more closely related to the realities of practice. Given the diversity of the profession and the variety of services which it provides, and the different standards at which these different services have to be delivered, it would have been helpful to be given guidance on what such a framework might look like, and a definition of the standard which such a framework might set. Lowest common denominators come to mind, which will hardly help anybody.

Paralegals
A brave and convincing attempt is made to predict the future shape and size of the profession. The growth in the numbers of solicitors and barristers is described as fragile. However, the present body of paralegals is, it is thought, likely to increase, and serious questions are raised as to how they are trained, supervised and regulated. Paralegals lie across a broad spectrum in respect of their qualifications (barristers seeking pupillage, LPC graduates looking for training contracts, law and other graduates, paralegals who have progressed to legal work from clerical or administrative work in a law office) and another spectrum in respect of their competence. The second spectrum does not necessarily correspond with the first. The team is satisfied that the problem is to be addressed through entity regulation and that there is no case for compulsory certification. Voluntary registration is advocated, but there is no analysis of how it might operate, much less the cost. The BSB, which is asserting jurisdiction over some entities, will become involved in the regulatory aspects of this question; and employed barristers will have something useful to add to the debate. But the burden of this problem is likely to be borne by the SRA.

CPD
The team recognises the importance and inevitability of CPD. The different arguments surrounding the subject are fully rehearsed. They may also be found in a report made to the BSB in May 2011, on which the BSB is expected shortly to pronounce; and in a report made to the SRA. Should CPD be based on a stated number of hours, or should practitioners be given discretion to decide for themselves how much they need? How is it policed? How full a record should individuals make of what they have done, and of its value? Recommendations 16-19 urge better planning and more reflection by practitioners, but leave regulators to decide on what might be appropriate for their members.

Regulation by title –v– regulation by activity
One of the best-written and most closely argued passages in the Report appears at the beginning of Chapter 5, which discusses the merits of regulation by “title” (e.g. barrister, solicitor, legal executive, patent attorney) as opposed to regulation by “activity” (e.g. advocacy, drafting wills, conveyancing, the law of banking). The author does not address the underlying difficulty of defining an “activity” for many areas of legal practice, and does not refer to codes of conduct which, by preventing practitioners from taking on work they are not competent to do, act as an activity regulator in themselves. But the author convincingly argues for retention of the present “title-based” system, and is cautious about QASA, which is the example of activity-based regulation which, for most of us, is the closest threat. It is regrettable that this conclusion does not find its way into the formal Recommendations.

Access, mobility, equality and diversity
The research team rightly concentrates much effort on assessing career opportunities available to aspirants wishing to engage in legal work at all levels, and from all backgrounds, albeit in a difficult economic environment. Its recommendations in this respect will be immediately recognised by the Bar: more information, more flexible career paths, fairer access to work experience and mini-pupillage, training in equality and diversity, improved selection procedures and many others. But do we need to insist on graduate-only entry, subject to the right to apply for a waiver from the BSB? Much work has already been done by the various institutions of the Bar in this field. The team’s recommendations will encourage work which is already in progress.

A new legal education council
The development and improvement of education and training is a continuous and iterative process. It never stops; and it is salutary in principle for those of us at the coal face to get helpful and constructive comment from outside observers. We never have all the answers. But do we really need another body to help us on our way? Recommendation 25 sets out terms of reference for a new Council – membership, cost and sources of funding unspecified – to act as a general information clearing-house and advice centre on legal education and careers. Why the many bodies which currently surround the legal profession do not or cannot perform this function is not explained.

The author is Director of Advocacy in the Middle Temple and chairman of the Research and Development Committee of the Advocacy Training Council.

Derek Wood QC, Falcon Chambers

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Derek Wood CBE QC

Derek, Falcon Chambers, specialises in all aspects of commercial and residential property law, and arbitration. Derek is the Chair of the Governors of the Inns of Court College of Advocacy (ICCA) which will be launching in June.