The UK Legal Services Act 2007 and the Need for a Theory of Law
University Law Schools which embrace critical legal studies are very well placed to produce the lawyers of the 21st Century. Read more on the subject from the revised text of a lecture delivered at the Shue Yan University, Hong Kong, (Dr Hu Distinguished Lectures, 2014) below:
1. Introduction
My lecture today visits a familiar question from what I hope is an interesting and new standpoint. The question concerns the extent to which the content of University legal education can and should be designed to prepare individuals for legal practice, and, thereby, serve the goals of the legal services market.
This question has been a matter of acute concern in the United Kingdom (UK) of recent years. In 2011, the Legal Services Act 2007 came into force. The 2007 Act created the framework for a radical re-conception of the legal services market in England and Wales, allowing, among other things, a range of organisations – including supermarket chains like Tesco - to offer legal services under the Act’s alternative business structures framework. With the impact of the Legal Services Act specifically in mind, a Committee was established with the purpose of reviewing the entire content of legal training in England and Wales. The Committee was named the Legal Education and Training Review (LETR) and delivered its report in June 2013. It recommended the incorporation of a greater proportion of vocationally oriented legal skills into the second stage of legal education and training – the professional stage. For example, it recommended the inclusion of courses on business management and professional ethics for the legal practice/Bar vocational stage.
The LETR's approach to University legal education, however, was very different from the approach adopted in respect to the vocational stage.. After stating that the University level stage should not be “over regulated”, the Review goes on to intimate that to the extent that regulation of the University stage is required, it would not be with the goal of adding vocational skills but rather to add “ a discrete assessment in the skills of research, writing and critical thinking". 2. Thesis
The focus of my lecture is on the Legal Education and Training Review’s response in relation to University legal education. My argument (represented in the title of my lecture) is that implied in the recommendations for additional teaching in research, writing and critical thinking, “….as a proportionate response...” to developments in the legal services market, is the idea that the new legal services market demands that prospective practitioners receive a thorough grounding in the theory of law. More concretely, I argue that an important aspect of the new market in legal services, which the 2007 Act constructs, is a narrowing distinction between the academic study of law and the practice of law. The new legal services market demands that the University level stage of legal education become more theoretical/philosophical, rather than becoming (as might be supposed) more vocational. 3. Theory and vocation
What exactly do I mean when I say that the new legal services market demands that University legal education become more theoretical and less vocational? Bluntly, I mean that the form of legal education associated with critical legal studies – in all its various guises and manifestations – will become/arguably has already become – the universal or dominant mode of teaching and scholarship at the qualifying stage of University legal education.
Quite a quantity of books and essays have been written about the conceptual origins, development and characteristics of critical legal studies (CLS). Two claims about CLS are common to virtually all such expositions. The first, is that Critical Legal Studies is a distinctive scholarly movement, which emerged in the late 1970s. The second, is that the scholarly movement was inaugurated in the United States (US) with the Conference on Critical Legal Studies held in Winsconsin, Madison in 1977: its development in the UK was marked by the Critical Legal Conference, which was held at Kent University in 1984.
Critical legal teaching and scholarship enjoins a range of methodological frameworks, literary influences and contexts. Feminist theory, critical race and postcolonial scholarship and the Law and Literature movement signal some of the more prominent of the intellectual concerns of CLS. At the core of the tradition of CLS, however, is the relatively simple proposition that law is philosophy. In the words of Costas Dousinas:
All great philosophers from Plato to Hobbes, Kant, Hegel and Weber had either studied the law or had a deep understanding of legal operations. Juristic issues have been central to philosophical concerns throughout history. Well before the creation of the various disciplines, when thinkers wanted to contemplate the organisation of their society, or the relationship between authority and citizen, they turned to law (2005).
Critical legal studies is to be contrasted with the legal science of Susan Bartie's description; an “...approach to studying law (that) involved the scholar situating themselves within the judge’s reasoning process" (2010). It is legal critique, and not legal science, which the new legal services market demands.
4. The Legal Services Act 2007
I come now to the main focus of the lecture, and to the detail of the UK Legal Services Act 2007. In what ways has the Act redefined the objectives of legal services provision? Why do I suggest that these refashioned objectives demand practitioners trained in theory- specifically trained in the traditions of critical legal studies? Until the 2007 Act, the objectives of legal services were quite simply about representation and litigation. The Courts and Legal Services Act 1990, states that the purpose of legal services is to aid “the development of advocacy, litigation, conveyancing and probate services".
Activities of this kind are, of course, incorporated into the 2007 Act, but the striking feature of the 2007 Act is that it does not include representation and litigation specifically within its statement of the objectives of the legal services market. Instead it creates a separate section (section 12) within which is defined what we might call conventional legal services. Thus, section 12 defines legal practice as:
The provision of advice or assistance in connection with the application of law or with any form of resolution of legal disputes; provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes.
It is in Section 1, paragraphs a-h that we find the Act’s quite revolutionary regulatory objectives. Now the core objectives of the legal services market are:
A. Protecting and promoting the public interest B. Supporting the constitutional principle of the rule of law C. Improving access to justice D. Protecting and promoting the interests of consumers E. Protecting competition in the provision of services F. Encouraging an independent, strong, diverse and effective legal professional G. Increasing public understanding of the citizen’s legal rights and duties H. Promoting and maintaining adherence to professional principles
Although most commentators agree that something very significant is developing in the legal services market, few have noted that it is a market that is almost certain to promote critical legal teaching and scholarship in a hitherto unprecedented way.
The Legal Education and Training Review(Executive Summary) describes the legal services market as one:
...experiencing an unprecedented period of change...market liberalism and funding reforms in the domestic legal services sector are transforming the face of consumer legal services, and influencing buyer behaviour, shaped by technological and demographic changes. These influences are already driving technological, role and process innovations within legal services, innovations with which LETR must keep pace.
This quoted section of the LETR is typical of how the new legal services market is being evaluated. But the vision contained within the regulatory objectives of the legal services market is much more remarkable than one would suppose from current debate, which is so focussed on the advent of alternative business structures and so-called disruptive technologies (and so on) that it overlooks the Act's greatest innovation - which is to make no longer tenable the distinction between the academic study of law and the practice of law. If we take for our example regulatory objectives B and G (supporting the constitutional principle of the rule of law and increasing public understanding of the citizen’s legal rights and duties), we can see that the intellectual concerns integral to the university law degree, which provides knowledge of the “...general framework of legal institutions and their place in the changing society in which we live...” (Gower:176,) now reflect necessary modes of legal practice. Hitherto, the practising lawyer has embodied the structures and values of the legal services market. The 2007 Act has joined the academic lawyer with the practitioner in representing the essential nature of the new legal services market.
As a result of the re-envisioned scope of legal services, which the 2007 Act frames, the market no longer merely tolerates the theoretician but structures some of its key regulatory objectives around the need for theorists of law. The debate about whether or not vocational skills should be incorporated into undergraduate study has now become redundant. In a very real sense, the Act has made knowledge of, and ability to disseminate, the theory and principle of law sufficient vocational tools.. To put the point another way, the core intellectual attainments which come with the study of law in the University Law School that supports the traditions of critical legal teaching and scholarship will increasingly shape and define new and expanding conceptions of legal practice.
5. The regulation of legal education in the UK
I will conclude the lecture with some reflections on what the altered legal services market means for the current scheme through which University legal education in England and Wales is regulated.
For almost 40 years, individuals intent on joining the legal profession have been required to study a law degree containing six core subjects, which together are said to form the foundations of legal knowledge. What we now refer to as the Qualifying Law Degree (QLD) (as distinct from a law degree per se) had its origins in the recommendations contained in the Report of the Committee on Legal Education (the Ormrod Committee). The Committee was set up in 1967, and by the time it reported its findings and recommendations in 1971, twenty-two University Law Schools were in existence. The Committee noted that of those 22 Law Schools the invariable practice was to offer a three year degree which included, as compulsory subjects, contract, tort, criminal law, property law, constitutional law, and English legal systems. Today, qualifying law degree providers must also offer European Union Law and Equity and Trusts. They are not required to offer English legal systems as a single subject, and tort and contract can be subsumed into a single module on the law of obligations. So, change to the content of the qualifying law degree there has been, but after several decades and several major committees of inquiry into legal education and training and into legal services, there appears to be strong agreement between university providers, the profession and professional regulators over the fields of knowledge which should form part of all University level qualifying law degree.
When content change comes about, such change should take account of the following factors:
First, it is estimated that only 30% of graduates with qualifying law degrees will go on to engage in the forms of activity defined within section 12 of the Legal Services Act as legal practice. This means that only a very small percentage of graduates will go on to provide legal advice, assistance or representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes.
Second, one of the features of the Legal Services Act I have not yet mentioned is the sweeping cuts to legal aid that it authorised. With the loss of funding support for disadvantaged clients, the University Law School will become the key provider of legal advice, assistance and representation in respect to the huge unmet need which will result from the dramatic legal aid cuts, since it (the Law School) will contain the largest pool of legally competent individuals willing to provide legal services for free, Taking the two points together, the vast majority of students will find that the university is the only place in which they will find opportunities to engage in conventional legal activity – advice, litigation and advocacy.
Third, and returning to the key point of my lecture, section 1 of the Legal Services Act 2007 outlines certain regulatory objectives which simply cannot be achieved through conventional(section 12) legal activity.
To assist in the achievement of the regulatory objectives of the 2007 Act, some revision to the content of the QLD will be required, but, as the LETR intimates, these are not changes which would drawn in proportionately more vocational skills. It is important to make compulsory so much as is necessary in terms of skills and knowledge to enable a rapid and compulsory expansion of the University Law Clinic. However, for the most part, changes to the QLD would aim to deepen and extend theory and principle. Those University Law Schools already embracing critical legal studies are very well placed to produce the lawyers of the 21st Century. References Bartie, Susan, “The lingering core of legal scholarship”, 30 (3) (2010) legal studies,, 345- 369 Douzinas, Costas and Gearey, Adam (eds.) (2005) Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing Gower, Lawrence ,“English legal training: a critical survey”, Modern Law Review, 13 (1950), 137-205 Legal Education and Training Review, Setting Standards: The future of legal services education and training regulation in England and Wales,, 2013 Report of the Committee on Legal Education, (1971). Cmmd. 4595 {Ormrod Report} London: HMSO Courts and Legal Services Act 1990 C.41 Legal Services Act 2007 C.29