The LETR's in the Post

The LETR’s in the post: The Legal Education and Training Review’s

conclusions and some implications for law schools

Julian WebbUniversity of Warwick

Formerly LETR Research Lead

What is LETR?

• Review of ‘LSET’ regulation• Two phase project –

– June 2013 Report = outcome of the first phase

– Phase 2 (ongoing) is for the regulators

• First phase has been research-led:– Independent research team– Evidence-based

• Literature review• Qualitative research (focus

groups/interviews; 306 respondents)• Quantitative surveys – ca. 1250

respondents• Stakeholder engagement (responses

to draft papers, conference, input and advice from ‘CSP’)

Key messages

• No clear evidence that the system is fundamentally not ‘fit for purpose’

• Need to build on strengths and address some weaknesses for the future

• Overarching theme: enhancing quality, accessibility and flexibility of the LSET system(s)

• Seeks to engineer a shift to regulation by design rather than a heavy emphasis on content and process regulation

“The recommendations in this report are... designedas part of a socially robust, long-term, approach to anumber of deeply-embedded problems. Theirprimary purpose is to set-up a longer-term set ofstructures and relationships which will work to dealwith difficulties in the system in a much more co-operative, co-regulatory way, building upon realevidence and greater transparency” (Para 7.5)

What does that mean?

• Focus on ‘LSET’ system• Greater emphasis on assuring ‘continuing competence’ – ie

workplace learning/CPD• Needs-led approach: day one outcomes as a starting point• Greater standardisation of (vocational) assessment• Reduction where possible in content and process regulation• Increased flexibility in delivering/blending stages of training • Reduction in information barriers• Need for cooperation between regulators in setting and

assuring standards

Main recommendations - LLB/GDL• Foundations:

– no significant increase above 180 credits (Rec. 10)– a possible move to outcomes-based definition (but also ‘broad content

specification’ ) (Recs. 6, 10)?– Greater freedom to change balance/weighting of ‘subjects’?

• Ethics– Not a Foundation subject, but QLDs/GDLs need to demonstrate focus on

legal values, the relationship between law and morality, and the role of lawyers (Rec. 7)

• Skills– Concerns about written and oral communication skills highlighted– Discrete assessment of research, writing and critical thinking skills in the

LLB/GDL (Rec. 11), must be at level 5 or above.

• Diversity– University law schools should be obliged to publish diversity data (Rec. 24)

04 February 2015 6

Other recommendations• Structures

– Flexibility – opportunities to work and study in different configurations (more ‘earn while you learn’)

– Adjusting periods of supervised practice (such as the training contract)– Supporting apprenticeships – Fairer access to internships and placements, – Improved training framework for paralegals

• Information– On diversity– On careers, pathways, research and evaluation of LSET

• Greater coordination of information resources, research and development, and educational evaluation – ‘Legal Education Council’

04 February 2015 7

Responses(!)

• A missed opportunity

• Long-winded

• Business as usual

• Better than expected

• A decent compromise

• Sensible recommendations

• An important milestone

• Interesting times ahead

Wider reflections

• The new political economy of LSET:– Liberalisation, innovation and marketisation – an unresolved

relationship– Clearing a discursive space for liberal legal ed? But... – Competition and market differentiation between providers?– Competition between pathways?– Reduction of information barriers – double-edged

• LSET regulation: increasingly central to legal services regulation?– Diversification of regulation – competences, standards, training

audits as key regulatory tools – LSET and the professionalisation of para-professions

The big challenge?

“So whilst on the surface everyone (kind of) is saying they are (sort of) happy, no one is smiling. And no one is smiling because the research tells them there is not enough research; the research - and a moment's thought - tells them there is no easy solution; there are many hard yards; and it is everyone's problem, not yours, not mine, not theirs. It's ours.

The research stands as an astute reminder that this is the reality: implementation is everything. This will require resources (knowledge, skills, bodies, money) and it will need mechanisms for change.

For that reason (I surmise) they propose that the different constituencies coalesce around things like working out outcomes: what does a lawyer need to be able to do at day one. And they propose a Legal Education Council to advise regulators and act as focal point for sharing best practice. This kind of negotiated solution will require a great deal of energy and goodwill. I wonder if anyone is really up for it. A more likely scenario is the regulators who want change will liberalise, permit change and (if they do not skimp) properly assess it. That would require both a fleetness of foot and a robustness about testing the links between competence, education and training which we have yet to see attempted in the legal sector.”

Prof. Richard Moorhead, Legal Week blog, 27 June 2013

Phase 2 prospects

• Abolition of JASB; reduce duplication of QAA functions– De facto deregulation of the academic stage?

– The QAA Benchmark

• SRA ‘bonfire of regulations’– New competence framework (commissioned)

– Removal of unnecessary regulation (in progress)

– New CPD framework (under consultation)

• Regulation of paralegals ‘on the shelf’

• How much co-ordination?

• LEC and information functions?????

Developing a community of practice....

“A resounding sentiment was that there needs to be a permanent conversation about the future of the profession – from broad and creative imaginings of future business structures, to assessing emerging technologies, to pedagogical reform in the training of lawyers – to encourage lawyers to innovate within their own practice setting. More often than not, participants affirmed that there should be space within the CBA for these issues to be discussed on a more regular basis.” (Canadian Bar Association, 2014:24)

...the fundamental tension between education of lawyers as delivering public value and education of lawyers as delivering private value is structural. The tension may manifest itself in different ways under different conditions, but it will always be with us and must always be managed. Other matters likely to continually give rise to stresses, challenges, and the need for managing change are: the economics of law schools; the rapid evolution in the market for legal services; the function and value of accreditation standards; the financing of legal education; the role of parties other than law schools in legal education; and the role of media in understanding legal education and communicating with the public. Since these forces and factors will always be with us, it is prudent for the system of legal education to institutionalize the process of dealing with them. All parties involved in legal education should support a framework for the continual assessment of strengths and weaknesses and of conditions affecting legal education, and for fostering continual improvement. The process should ensure that not only law schools, but also practicing lawyers, judges, and other interested actors have a voice and an opportunity for meaningful contribution.” (ABA Task Force, 2014:29)

Some sources

• M. Thornton, Privatising the Public University: The Case of Law (Routledge, 2012)

• A. Sherr and S. Thomson, ‘Tesco Law and Tesco Lawyers: Will Our Needs Change If the Market Develops?’ Oñati Socio-Legal Series, Vol. 3, No. 3, 2013. Available at SSRN: http://ssrn.com/abstract=2293660

• J. Webb, ‘Regulating Lawyers in a Liberalized Legal Services Market: The Role of Education and Training’ 24(2) Stanford Law & Policy Review 533-70.

• Special Issue: Law Teacher, vol. 48(1) (2014).

• H. Sommerlad et al (eds) The Futures of Legal Education and the Legal Profession (Hart, 2014), forthcoming.