A forthcoming report on the case for reforming legal education and training may be ‘unbalanced or worse’, the UK’s senior judge said in a lecture last week. According to Lord Neuberger, ‘misguided reform’ initiated by the Legal Education and Training Review (LETR) may ‘undermine the rule of law and our democracy’.
As master of the rolls, Neuberger was a prolific lecturer – thanks to his excellent speechwriter, John Sorabji. Since taking over as president of the Supreme Court at the beginning of last month, Neuberger’s pace hardly seems to have slackened. But what stands out from his Lord Upjohn Lecture to the Association of Law Teachers is the passion that rises from every page.
Two years ago, the Upjohn lecture was delivered by David Edmonds, who chairs the Legal Services Board. As the profession’s ‘super-regulator’, Edmonds hypothesised that the current framework for legal education and training was ‘simply not fit for purpose’. Six months later, the LETR was established by the profession’s three frontline regulators: the Solicitors Regulation Authority, the Bar Standards Board and ILEX Professional Standards, which regulates chartered legal executives. The review’s team of academic researchers is expected to submit its recommendations to the three regulators next month.
Neuberger began his lecture by questioning Edmonds’s initial assumption. ‘It remains an open question whether the hypothesis that the present system is not fit for purpose is anything other than assertion,’ the judge said. ‘There is real reason for doubting whether there is that much wrong.’
Referring to reports that Edmonds would be ‘extremely disappointed’ if the LETR led to merely minor changes, Neuberger argued that we should reserve judgement until the review makes its recommendations and the regulators decide what to do. He suggested commissioning a second phase, taking account of practical and professional experience. It should consult consumer groups and, yes, the judges, as ‘quasi-consumers of legal services in court’.
More fundamentally, he is worried that in setting out its aims, the LETR has singled out just two of the regulatory objectives in the Legal Services Act – promoting the interests of consumers, and ensuring an independent and diverse legal profession.
‘I am afraid that is not a good start,’ said the president of the Supreme Court. The legislation also mentions improving access to justice, promoting competition, helping people understand their rights and promoting adherence to professional principles, such as acting in the best interests of clients and in the interests of justice.
‘By singling out two of the regulatory objectives in this way, the review team may well have provided themselves with a deformed theodolite through which to survey the field,’ he continued. ‘Its report into the case for reform may therefore be unbalanced or worse.’
So how would Neuberger define the purpose of legal education and training? Law is not just a business aimed at maximising profits, he said, while accepting that making money is a legitimate aim. ‘Lawyers also owe overriding specific duties to the court and to society, duties which go beyond the maximisation of profit and which may require lawyers to act to their own detriment and to that of their clients.’ The legal profession is fundamental to democracy, he noted.
‘If we exclusively focus on promoting consumer interests, on the development of law as a trade, by treating the provision of legal services as any old commodity, we cast aside its fundamental role and purpose, its raison d’être, and we undermine the rule of law and our democracy.’
From what I have reported so far, Neuberger’s lecture may seem entirely negative. It was not. While fearing that wide-ranging, radical changes may be knocked off course by the law of unintended consequences, he supports targeted reform. In particular, he wants to build on the non-university route into the profession provided by CILEx, the Chartered Institute of Legal Executives. CILEx fellows can already become solicitors; why not allow them to become barristers too? That might increase diversity, given that the university route to qualification as a barrister or solicitor now costs around £100,000 when living expenses are included.
Neuberger also recommends making professional skills – ethics, client-handling, dealing with public bodies and business operations – an essential part of undergraduate law degrees. ‘The introduction of mandatory skills requirements in each year of an undergraduate degree would bring more practising lawyers into the university,’ he noted. And what would be the broader effect of exposing legal academics to the real world? Neuberger was too polite to spell it out.
But we may infer he thinks that academics would be less likely to come up with the sort of unbalanced recommendations he is expecting from the LETR. As he says, the interests of consumers and the needs of lawyers are not the fundamental regulatory objectives; they are the public interest and the rule of law.