Reflecting on 10 years of the Legal Services Act
Jenny Crewe, Director of Jenny Crewe Consulting Limited
Although I doubt that legal education was at the forefront of anyone’s mind when the Legal Services Bill was being drafted, the Act’s impact on legal education has been profound.
The regulatory split
The Legal Services Act, with its requirement for the regulatory and representative roles of the professional bodies to be separated off, has given rise to the gradual demise of profession-led regulation along the lines of the ‘old’ Law Society, and an increased focus on the client (or consumer).
This has been most evident in the increase in the lay membership of boards and committees, and the fundamental focus on the regulatory objectives set out in the Act.
From a policy development perspective, the introduction of new ways of thinking was revolutionary. Committee meetings began to include highly experienced individuals from other sectors who suggested new methods and new ways of thinking from other professions, and which we (at the SRA) could piggy-back on and develop for the legal sector.
A good example of this was when one of the SRA’s Education and Training Committee members pointed us in the direction of the very well-developed field of medical education research. The ground-breaking QLTS assessments flowed from this, and whether you like the SQE proposals or not, the rigour with which they will be designed and operated (hopefully!) will be in part a consequence of the influence of new perspectives on the regulatory process which became the norm post-LSA.
Outcomes-Focussed Regulation (OFR)
However the biggest change to legal education came in the guise of OFR. The regulators could no longer side-step their responsibility to ensure each individual was competent to practise. That responsibility, it was now clear, sat squarely with them and could not be delegated down to the profession or LPC/BPTC providers.
And this is where the SRA’s Training for Tomorrow (and the Bar Standards Board’s Future Bar Training) emanated from - the realisation by the regulators that they would not be meeting their statutory objectives if they simply put the burden for assuring competence onto third parties.
With the best will in the world (and significant resources), the SRA would have had difficulty assuring the LSB that every student on every LPC was meeting the same standard, let alone every trainee on every one of several thousand training contracts. In 1998 there were 75,000 practising solicitors, the latest figures show 142,515 - the solicitor profession is no longer (was it ever?) a close-knit group of like-minded individuals, where a community of practice could ensure that everyone was signed-off to a similar standard.
Put in this context, it is clear why centralised ‘final’ assessments have become the order of the day. They have the very major advantages of ensuring everyone has met a threshold standard and can increase access to the profession by removing artificial barriers i.e. they help regulators to meet their statutory objectives.
But on the downside, they can lead to a slavish obsession with outcome measures (including the reliability of the tests), to the detriment of the overall validity of the qualification (i.e. whether it turns out competent lawyers or not). This, coupled with a need for regulators to cut costs and ‘red tape’, risks undermining the underlying value of the qualification.
The Legal Services Act, with its focus on outcomes and regulatory objectives, means that the priorities of the regulator, may no longer align with the priorities of solicitors. There is a tension there between a ‘pure’ regulatory body and an amorphous profession, which is yet to be fully articulated, let alone resolved.
Jenny Crewe is a legal education consultant specialising in regulation and assessment. She spent 14 years at the Law Society and Solicitors Regulation Authority during which time she led the introduction of the Qualified Lawyers Transfer Scheme at the SRA, and authored the Law Society’s strategy on legal education and the solicitor brand.