LETR, regulatory relationship and the shared space

The initial LETR specification asked us to report on many areas of legal education, and under various headings regulatory relationship was part of the future reform of legal education and training.  The subject was hardly addressed in earlier reports on legal education in these isles, either because it wasn’t perceived as problematic or, more likely, it was beyond the remits of the reports.  After the regulatory turbulence in E+W surrounding the introduction of the Legal Services Act 2007, however, it was hard to ignore.  In my last post on the LETR conference I said I’d summarise what was in my section of the panel presentation regarding regulatory relationship in LETR, and this post outlines what I said.

Our starting point in LETR was the role of OFR – outcomes-focused regulation.  As we pointed out in LETR Report 3.44ff, OFR is an element of risk-based regulation, where the regulator ‘identifies the risks that need to be managed in respect of certain activities, and designates the outcomes that must be achieved in order to manage or vitiate those risks’.^[1]  Even before LSA 2007 the Smedley Report had pointed out the need for culture change, requiring a shift from ‘investigation, scrutiny and punishment’ to ‘education, information, training, expert advice and promotion of standards’.^[2]

But the key question is, how is OFR to be implemented within a legislative regulatory structure?  The usual top-down hierarchical approach works against the grain of a regulatory regime that is no longer rules-based only.  If, for example, outcomes are specified, controlled and overseen by the regulator only, then the regulatee’s space for agency, responsibility and self-determination is compromised even more than in a rule-based regime, and leads to game-playing and systemic avoidance.  To mitigate the problems, LETR addressed the issue of regulatory relationship, treating the SRA as one actor amongst many, and adopted what was called in the Literature Review (chapter 3) a ‘shared space’ approach.  Individually we co-authors came to this approach through a variety of routes.  I wrote about it in a pre-LETR blog post, and have been interested in it ever since my experiences on the Education & Training C’ttee of the Law Society of Scotland (I served from around 2002-2010).  Drawing on diverse literatures, and taking traffic planning and road management (particularly the work of Hans Monderman) as an example, we discussed in the LETR project how the idea redistributes risk among road users, treats them as responsible, imaginative, human.  We viewed the environment as a stronger influence on behaviour than formal rules and legislation.  As Monderman put it, discussing the effects of street furniture and signage on users,

All those [road]signs are saying to cars, “this is your space, and we have organized your behaviour so that as long as you behave this way, nothing can happen to you”.  That is the wrong story.^[3]

It may seem an odd approach, but the shared space analogy is really one example in a wider movement for participative regulation.^[4]There is a running debate on the power of regulatory and licensing agencies – do they have too much power and too little accountability?  Or is it the reverse?  In LETR, we agreed with Colin Scott’s solution to this debate, which was

[…] NOT to give agencies more power and less accountability, but rather to recognise and work with the various organisations, capacities and forms of control within particular regulatory regimes to promote learning about how regimes work so to secure better understanding not only of policy solutions but also of policy problems.^[5]

It’s an example of a participative solution, an example of which might be the situation where frontline experts assist in elaborating a body of standards and guidelines for national implementation (eg in the early 2000s, the Lamfalussy Process in EU financial markets).^[6]

In LETR, therefore (and without losing sight of the regulators’ statutory requirement to regulate), we shifted the emphasis from quality assurance to quality enhancement, focusing on innovation, imagination and change for a democratic society.  Just as Monderman re-designed traffic systems for responsible adults, so we wanted regulators to act in the same way, where they would be part of a hub of creativity, shared research, shared practices, and the guardian of the debates around that hub.  In so doing, they would initiate cycles of funding, research, feedback and feedforward.  They would be responsible for an archive of educational research, particularly the research into educational technology.^[7]  We also envisaged regulators as participating in interdisciplinary, inter-professional trading zones.  And so we crafted Recommendation 25 in LETR which like all the recommendations was woven into the fabric of the full set of recommendations:

Recommendation 25
A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice. The Council should also oversee a collaborative hub of legal information resources and activities able to perform the following functions:

–Data archive (including diversity monitoring and evaluation of diversity initiatives);
–Advice shop (careers information);
–Legal Education Laboratory (supporting collaborative research and development);
–Clearing house (advertising work experience; advising on transfer regulations and reviewing disputed transfer decisions).

Well, we all know where that went – dismissed outright by the SRA in its initial response to LETR.  But let’s push a bit further and see what could have been, and what could still be shared in this shared space.  We envisaged that as a consequence of this culture change there would be more agency at every level – students, trainees, professional learners, QWE, CPD, the profession itself.  In the last category we were really just following practices in the health sciences, where practitioners are encouraged to give back to learning and teaching institutions the benefit of their accumulated experience and wisdom.  Law schools could be encouraged to share much more than they do at present – collaborative formations such as the Glasgow Graduate School of Law (discussed in an article here) and the Oxford Institute of Legal Practice are examples.  Professions, law schools, students and legal tech companies could converge in more innovative clusters, such as the Institute for the Future of Law Practice, in which Osgoode Hall Law School is a founder member.  And regulators themselves could come together much more than they do.  A good example of this is the Prairie Law Societies in Canada (ie Manitoba, Alberta & Saskatchewan provinces), where one regulator may face many of the same problems as its neighbour and it makes sense to collaborate closely on problems, processes and solutions.^[8]

Regulators have of course liaised internationally.  There is an International Conference of Legal Regulators, set up in 2012.  Laurel Terry attended that meeting and wrote a perceptive account of it.  She identified four possible goals for the then new international conference:

1. Co-operation and information sharing on specific cases
2. Clearinghouse for information about regulators’ practices & tools
3. Exchange of information on policy issues & projects
4. Development of common policies or practices^[9]

She noted that when she put these goals to conference the first three were accepted and the last, predictably, proved divisive & was rejected.

But perhaps we should go in a different direction than common policies and argue for peer-review (PR) of legal educational regulation, based on the body of literature on peer review of agency decision-making.  Simply put, this entails policy-making in one jurisdiction being reviewed by another jurisdiction.  PR can reveal national issues & dilemmas for parties involved in it; and trans-national deliberation can help clarify local debates, frame local choices, and help explore policy alternatives.  The issues involved are fascinating.  It can of course assist reflection and action, on both sides of the PR; and gives a regulator an interesting and international view on domestic practices.  Questions arising include the potential role of PR in enabling agency loosening from domestic regulatory regimes; the role of PR in either decreasing or increasing agency uncertainty, and the issue of who educates the regulators undertaking the PR process.  In the implementation of the Quality Enhancement regime in Scottish universities information, guidance and education was a key element of its success, and this would be true, too, of international regulatory PR of legal education.

We seem to have strayed far from LETR and its recommendations five years ago.  And yet I’d argue that what we have above is simply the natural extension of shared space and what LETR advocated.^[10]  It’s also, and more crucially, where good practice in regulation is heading globally.  In a fascinating seminar on ‘Peer Review of Agency Decision-Making’ (given to ANU’s Centre for European Studies, 25.10.16), Yane Svetiev, then of the EU Institute, now with Sydney University, summarised in one slide the list of regulators in the EU (the LH col) and globally (RH col) involved in some way in PR.^[11]

And PR, too, can be seen as part of the movement for Experimentalist Governance, the literature of which is extensive.  This movement is key for the future of legal education regulation, in any jurisdiction.  Take the example I started with, above, the problem of an OFR regulatory regime.  As LETR pointed out, OFR is necessary but insufficient.  If there’s a focus on outcomes, there needs to be agreement on standards for the outcomes.  But where do those standards come from?  Process regulation of standards by the regulator would inhibit the flexibility and scope for innovation around OFR – we’re back with top-down hierarchy, the situation that gave rise in E+W to the impossible tensions of the Training Framework Review, the antinomies of ACLEC, and for legal educators, the loss of creativity, agency and responsibility – to put it bluntly, regulatory infantilisation.  By contrast, experimentalist governance offers solutions that emphasise responsibility and creativity, and helps a more interactive, democratic community for OFR, or indeed any prudential scheme of regulation, to work properly.  Zeitlin put it well:

The crucial point that distinguishes such experimentalist architectures from conventional hierarchical governance is their contestability, whereby local actors have the autonomy to report problems with existing rules and explore alternatives, while the organizational centre is obliged to take account of such local experience in reconsidering and revising the rules.^[12]

This is real shared space, where contestation, contingency, historical awareness and sensitivity to relationship is acknowledged and then is put to work for the benefit of the community.  What we proposed five years ago in LETR is now ever more urgently required in the regulation of legal education in England and Wales, indeed I’d argue it’s needed globally in legal education.  The touchstone for legal educators in E+W is the SQE.  Ask yourself: will the SQE as currently constructed help our students to bridge academic into professional learning, help them be responsible lifelong learners, help them be ethical practitioners, help law schools co-operate with each other, engender and sustain educational and professional innovation, encourage social mobility and diversity in legal education and in the profession?  You know my answer.  In the words of Monderman above, it’s the wrong story.

1. ^[1]And as we pointed out, OFR are derived from general principles of good regulation, and the eight regulatory objectives specified in s.1 LSA 2007, discussed in chapter 2 of the LETR Literature Review.↩
2. ^[2]Smedley, N. (2011). The smaller approved regulators, an assessment of their capacity and capability to meet the requirements of the Legal Services Act 2007, with analysis and recommendations. Retrieved from https://research.legalservicesboard.org.uk/wp-content/media/Smaller-ARS-2011-report.pdf.  Quoted in LETR 3.46.↩
3. ^[3]Hans Monderman, http://www.pps.org/reference/hans-monderman/.  One of the issues is the dominance of one set of road users over others.  As I say in my earlier blog post,

   I learned to drive a car when I was 33, around the same time I began to study law. I’d had a motorcycle licence from the age of 18, and I learned to cycle around the age of 3. I can still remember one of the striking impressions of my driving lessons: how easy was the code and culture of the road when you were behind a wheel. It just all made perfect sense when you were in charge of a large machine, and the larger the beast, the more the sense of righteous dominance protected by code and physical environment. As a cyclist, it’s always seemed to me that a fundamental rethink of attitudes towards vehicles and travel was needed. If I felt vulnerable as a cyclist, in part that was because drivers were too secure, and they were so because the road environment was over-engineered around them, not designed for cyclists or any other road user.

   Shared space redesigns the physical environment of the road to redesign the relationships between road users (and see here for a recent article by Peter Walker in The Guardian on the introduction of similar environments, ‘mini-hollands’, in north London suburbs). Similarly, shared space redesigns the relationships between the parties in a regulatory relationship in order to enhance the experiences of the actors and the public interest arising from them.  ↩

4. ^[4]And the synergy of legal regulation and traffic regulation should surely call to mind the Yale legal realist parking studies. It’s not just analogical thinking.  As the work of Schlegel and Leiter attests, and the work, too, of the New Legal Realism movement, interdisciplinary analyses of the effects of regulatory conduct are critical tools with which we can hold to account the nature and extent of regulatory power.↩
5. ^[5]Scott, C. (2008).  Regulating everything.  UCD Geary Institute Discussion Paper, Inaugural Lecture↩
6. ^[6]See Zeitlin, J. (2016). EU experimentalist governance in times of crisis.  West European Politics, 39, 5, 1073-94.  Just to be clear, this is my example, not Colin Scott’s… ↩
7. ^[7]As we pointed out in LETR and some of us have observed on a number of occasions since, the Literature Review on LETR was one of the unique aspects of the LETR Report.  But it was also a snapshot, and needed to be updated, ideally at least annually.  To date nothing has been done on this – an opportunity missed.  Indeed there was an even greater missed opportunity, for the regulators to step in and assume some of the roles of the excellent UK Centre for Legal Education, which was shut down in 2011 by the HEA along with all other subject centres, and which now exists only as an archive site.↩
8. ^[8]See for example their fine paper on regulation and innovation, Innovating Regulation.↩
9. ^[9]Terry, L.S. (2012).  Creating an international network of lawyer regulators: The 2012 International Conference of Legal Regulators.  The Bar Examiner, 82, 2, 18-27. https://bit.ly/2txmlK7.  It’s interesting to note the broad parallels between points 1-3 and LETR Rec 25.  Even more interesting to remember that the international conference of regulators accepted these points as legitimate activities for the international conference, but the SRA felt otherwise when it came to implementation within the jurisdictions of E+W.↩
10. ^[10]Disclaimer needed at this point…  In developing the argument beyond LETR, what is set out here is a personal interpretation of LETR into the future.↩
11. ^[11]My thanks to Anne McNaughton of the ANU College of Law for the invite to attend the seminar↩
12. ^[12]Zeitlin, J. (2016). EU experimentalist governance in times of crisis.  West European Politics, 39, 5, 1073-94, 1073.↩