Ready, steady, LETR

There was an almost audible sigh of relief following publication of the LETR report – nothing too controversial, no change for change’s sake, recognition that the current system actually does deliver, and proposals that seemed difficult to argue against. The only problem is, the LETR report was not the end of the story; rather, it has launched a journey into the unknown. It is just the warm-up act for what the three regulators who commissioned it (the Solicitors Regulation Authority, Bar Standards Board and Ilex Professional Services) decide, both individually and collectively, to do following the report. 

The SRA was quick off the mark and issued its “Policy statement: Training for Tomorrow” on 16 October 2013. The document contains three main proposals: 1) no longer to prescribe and validate pathways to qualification, but to require a set of outcomes to be demonstrated at the point of qualification ; 2) to replace the current CPD ‘tick-box’ regime with a new scheme of ‘continuing competence’, and 3) to hold a ‘bonfire of the training regulations’, as SRA chief executive Anthony Townsend has so colourfully put it.

The SRA is being sensible in that it is taking a staged approach and, on the face of it, an inclusive, constructive and consensual approach. Some of its proposals are indeed radical (more anon), and some are more pressing than others. So the SRA has set out a timetable, with assurances that the current pathways and prescribed processes – for which read Qualifying Law Degree, LPC, Professional Skills Course, training contract, etc. – will continue to at least the end of the 2017/2018 academic year (ie until mid-2018 effectively). 

In the short term – that is, between now and the end of 2014 – the SRA is giving priority to its bonfire first, and to replacing the CPD system. At the same time, though, it will start work on the outcomes framework which will underpin the proposed departure from prescribed pathways, and a consultation on a new competence framework for solicitors is expected to be published in mid-2014. 

So, what do firms need to know and think about at this stage of what is likely to be an even longer process than to produce the LETR report?

Few would argue against the proposed ‘bonfire of the training regulations’ and reducing the regulatory burden. Whether the SRA’s view of what is unnecessary or unduly cumbersome accords with the views of those in firms who are responsible for training and for meeting the SRA’s current regulatory requirements is another matter. More will be known when the SRA publishes its consultation paper on this in early December – although the SRA’s consultation announced on 27 November does say that training contract proposals will be included.

Continuing competence scheme

Equally, few would argue that the existing CPD scheme is fit for purpose, or would oppose a move away from the current tick-box approach. An end to the absurdities inherent in the current system would be welcome – at present, for instance, you can’t count reading unless you do a test for comprehension at the end, but you can attend a seminar and fall asleep in the front row for the full hour and a half and not have to sit a ‘quick quizz‘ on your way out.

The issue is going to be whether the SRA can be truly radical and let go of any sort of ‘input’ requirement in the way of a minimum number of hours. Any minimum hours requirement is going to involve administration, although most firms already have systems set up for this if they undertake bulk renewal of practising certificates. Where things could change is if, in fact, there is no minimum hours requirement at all and the system is all based on individual personal development, such as personal development plans and appraisals.

Many firms already have formal appraisal systems; some require personal development plans – but not all. If it is left to the individual solicitor to declare on renewal of their practising certificate that they have complied with their post-qualification development obligations, it is between the solicitor and their god – or the SRA in this case. If it is devolved to the firm rather than the solicitor, on the basis of the entity-based approach to regulation, then the firm is going to need to have the appropriate systems and procedures in place to ensure that the necessary personal development is taking place. For a lot of firms, this may involve setting up systems and procedures that they do not have already, or at a formalised level that they have not had to date. Again, we will have to wait for the consultation paper on this which is expected in early 2014.

What is left then is the most controversial of the three proposals. Although this is not going to be decided in the short-term, it sets the scene – and tone – for everything else.

From pathways to outcomes

At the moment, there are three possible pathways to qualify as a solicitor: the law degree route; the non-law degree plus conversion course route; or the CILEX route. Each involves additionally and variously, the LPC, training contract and PSC, all of which are currently validated by the SRA. 

What the SRA proposes is that no routes to qualification will be specified in the future, and no programmes or courses will be prescribed or validated. Instead, someone wishing to enter the profession would be required to demonstrate, by an assessment at the point of wishing to qualify, the outcomes which the SRA determines are required of a solicitor on day one of qualification. 

One could be forgiven for feeling an overwhelming sense of déjà vu, as the spectre of the Training Framework Review arises from the ashes. The TFR caused uproar when it proposed, back in 2005, abandoning process and focusing solely on outcomes, and those proposals were abandoned. Has anything changed since then to make the equivalent proposals now workable and acceptable? 

Well, the LSB and SRA say we are in a time of “unprecedented change”, citing consumer demands, technology and fundamental changes to the regulatory system. This may well be true, but it depends on the nature of that unprecedented change as to what it should mean for legal education and training. 

For instance, consumer demand has always required high standards of service from lawyers. So, training needs to develop the necessary client care skills and professional and ethical awareness. Technology certainly has had an impact on the way solicitors work, communicate with clients, and the speed at which these things are able to happen. Working with technology therefore needs to be incorporated in training for practice. 

The fundamental changes to the regulatory system have brought in entity-based regulation, which places reliance on firms to ensure all their employees and partners comply with regulatory requirements; outcomes-focused regulation, which prescribes the desired result rather than the process of achieving it; and a risk-based approach in the way the regulator places its regulatory focus. 

When looked at this way, all this unprecedented change would appear to come down to content rather than process.

One of the drivers for no longer prescribing pathways is the SRA’s estimable desire to remove unnecessary barriers to qualification. However, if pathways are not specified and quality assured, 

the practical problem for firms and other employers will be with recruitment. Employers will be faced with the unenviable task of comparing apples with pears, and a whole range of other fruit they may never have ‘tasted’ before. So, employers, understandably, are likely to stick with the pathways that, in the past, have produced reliable quality in trainees or qualified solicitors. This may in fact serve to narrow rather than widen access, and could create an underclass with little prospect of employment if they have followed a non-favoured pathway. All that would really change would be the point of unemployment – unemployed qualified solicitors rather than unemployed LPC graduates. The case the SRA will have to make convincingly is why moving away from specified pathways to outcomes only will in fact improve what is currently there (which, according to the LETR report, does deliver), and how standards will be maintained, if not enhanced, by not validating programmes and courses. It is too early to judge but there is no denying that there is much to consider.

What should firms do in relation to the SRA’s policy statement and the proposals? Quite simply, respond to the consultation papers that are put out, and engage. The SRA appears quite genuinely to want to engage with the profession about this, which should not only be welcomed but taken up with alacrity. Remember, the warm-up act is over.  SJ