The opening passages of Lord Neuberger’s recent Upjohn lecture read like a significant attack on the Legal Education and Training Review. There is a pointed emphasis that, “the professional regulators will no doubt carefully scrutinise the quality and statistical reliability of its evidence, the soundness of its underpinning assumptions (including its understanding of the professional environment), and the validity of its conclusions.” There appears to be a somewhat surprising assumption that the review will, “proceed without taking into account practical, professional experience.” Something which is not, I think, a fair representation of the process so far (where there has been significant engagement with practitioners, as well as teachers and trainers). A “second phase should be the product of collaborative work by representatives of the professions, the judiciary, and consumer groups, including the Legal Services Consumer Panel and the Legal Ombudsman.” A sensible suggestion but for the omission of those with the practical experience of educating and training, which I think it is probably an unintended slip.
He is, I think, on safer ground in questioning the assumption that, “the present system is not fit for purpose” something which the LETR has not really said but others have. I, like Lord Neuberger, rather deprecate the fitness for purpose language, and Neuberger mounts a robust defence
“there is real reason for doubting whether there is that much wrong. UK lawyers enjoy a high worldwide reputation. Places on our university law degrees, at both undergraduate and postgraduate level, are highly sought after. Research and publications of academics in our universities are of high value and enjoy international recognition. Our courts and our substantive law are prized throughout the world – not only by those who seek to litigate in our courts, but also by those who seek our judges and lawyers out to assist them in the development of their laws and justice systems. Some of these points may largely apply to the more financially rewarding end of the profession. Nonetheless, they do firmly shift the onus on to those asserting education and training is unfit for purpose.”
The global perspective is an interesting one because whilst there is much to agree with here it should also be noted that about half of all solicitors come from outside the standard law degree route; and a good proportion of the other half come from overseas. Universities are increasingly engaged, especially at the end of the market with which Neuberger’s comments engage, in a global competition. There is an oft-talked of threat to the solicitors qualification posed by the New York Bar (I am not convinced by that myself, but do not know enough about it) but also the emerging, and rapidly developing strength of the Asian market, where the growing strength of local Universities is something to be watched keenly. It is not for any old reason that the College of Law have opened up in Singapore.
There is another oddity, which is the criticism of the review starting in the wrong place. Again, I think this is unfair. It is a criticism based on a statement on the LETR’s website where they summarise the LETR’s aims:
The primary objective of the Review is to ensure that England and Wales has a legal education and training system which advances the regulatory objectives contained in the Legal Services Act 2007, and particularly the need to protect and promote the interests of consumers and to ensure an independent, strong, diverse and effective legal profession.
Lord Neuberger interprets these words in the following terms, “It is worrying that the Review decided to describe its fundamental aim as directed to only two of the regulatory objectives, the interests of consumers, and a diverse and effective legal profession.” This is a rather strained interpretation of the words the LETR use on its site. It also ignores the substantial debates about the role of ethics in legal education and the strong public interest focus in the LETR’s broader work (I am thinking especially of Discussion Paper 2).
One would not criticise a judge who, after all, has rather more pressing things to concern himself with than wading through pages of LETR documentation, were it not for the emphasis that he puts on this “deformed theodolite”. There is no doubting the emphasis intended when one reads the words, “Its report into the case for reform may therefore be unbalanced or worse.” This is a very strong attack and it needs to be well founded if it is to be made. Having warned the LSB, quite rightly, against prejudging the review he appears to have done the same. Having framed in a very public way a debate about the LETR in terms of whether the LETR might somehow be deeply unbalanced, it will make it less likely – not more – that the collaborative work that will be necessary to successful change in legal education will take place.