The BCA will seek to establish standards of competence that lawyers should adhere to throughout their careers, and mechanisms that regulators should have at the forefront of identifying those they do not meet, as well as “areas of increased risk” for consumers. The LSB said it expects regulators to prioritize setting standards of competence that lawyers should meet “at the time of licensing” and throughout their careers. We hosted an online discussion event to inform our work on continuing jurisdiction. Other organizations, such as the Legal Aid Agency and the Office of the Commissioner of Immigration Services, have stated that confirmatory visits could be useful in assessing ongoing jurisdiction. The Bar Standards Board (BSB) said it was looking for “ways to gather feedback from judges” as part of the lawyers` annual professional development. Legal Services (LSB) is moving forward with plans to introduce ongoing competency checks for lawyers. Given the economic problems associated with the old staffing or secondment approach, in-house legal managers operating in a new cost-controlled environment must find alternative solutions. LSB President Dr Helen Phillips said: “Consumers should be able to rely on the expertise of legal service providers, not only when they qualify, but throughout their careers. The status quo is not sufficient to protect the public interest. Nevertheless, the LSB has imposed an obligation on all regulators to ensure the competence of all practitioners, regardless of their place in this mosaic of different activities carried out by different professions and subject to different regulatory authorities. Nor has the LSB process explained why more effective handling of cases of known incompetence is not a more risk-based, proportionate, targeted and cost-effective solution than universal and preferred jurisdictional assurance. Second, as you know, the purpose of the 2007 Act is to regulate reserved legal activities carried out by persons entitled to do so by virtue of a professional designation.

It is interesting to note that, although the Political Declaration recognises these activities as a variable in the context of competence, it does not contain specific provisions to maintain competence in relation to key activities to which Parliament has attached particular importance in the current legal framework. I believe it is generally accepted that even the responsibilities imposed by regulatory authorities for the granting of a professional designation and the resulting authorization for the reserved legal activities concerned for Day 1 do not in fact guarantee the competence of individuals to provide all legal services provided immediately after authorization. President of the Law Society of England and Wales I. Stephanie Boyce said: “Continued expertise ensures that lawyers do their work to the highest standards and provide quality legal services to consumers. While we recognize that changes are needed, some of the measures outlined in the consultation – re-accreditation, revalidation, competency assessments, observations and audits – would likely be costly and time-consuming, and unnecessary at this stage for the profession as a whole. The Conseil des services juridiques stated today that there are few formal routine measures in place to ensure the continued competence of individuals. After nearly two years of tracking potential changes, the LSB has released a draft statement on what it expects from forward-thinking regulators. Finally, the main difficulty in pursuing LSB`s continuing competence is that it seeks to achieve an unattainable positive, namely the assured and sustained competence of each practitioner for any activity he or she may engage in during his or her career in serving the legal needs of clients. It is not that such an objective is unworthy; it is impracticable and inconsistent with the obligations of the BCA under paragraph 3(3)(a) of the Act.

The statement contains few normative details, urging regulators to “get results” in setting standards of competence that lawyers should adhere to throughout their careers. LSB`s approach to ensuring continuous industry-wide competence is disproportionate in terms of impact, burden and cost. The process leading up to the policy statement provided no evidence of widespread harm currently being caused by practitioner incompetence. There is also no analysis of where harm is concentrated in terms of which practitioners are most likely to cause it, which legal services are most likely to cause it, and which consumers are most likely to be affected. Our research and evidence show that current competency measures are not consistent with consumers` expectations for ongoing monitoring of legal practitioners and more robust approaches in some other regulated sectors. There are also new approaches being taken in other countries that we should take note of. The regulator began reviewing the ongoing competence of lawyers two years ago and completed the declaration after consulting on a draft last December. This project is at the heart of LSB`s ambition to transform the legal services sector to better meet society`s needs and provide consumers with fairer outcomes, greater trust and better services. Consumers should be assured that legal practitioners have the skills, knowledge and characteristics to provide high-quality legal services and that they will be kept up to date and relevant over time. In January 2020, we issued a call for evidence to help us understand current approaches to ensuring competence and clarify whether there are gaps in the system or issues that need to be addressed. We conducted extensive discussions with stakeholders inside and outside the legal services sector and received 31 formal submissions in July 2020, in addition to other datasets and research items shared with us or from LSB literature searches. Regulators have six months to submit action plans to the Commission des services juridiques (LSB) on how they will reform their rules to ensure lawyers remain competent.

“It is appropriate for regulators to collect better information on competence to ensure standards are met and look for ways to demonstrate and communicate it to the public. They should then “regularly assess the level of competence within the professions they regulate”, identify areas where skills may need to be improved and, if necessary, take “corrective action”. The final version of the declaration of competence has hardly changed from the project. We have issued a policy statement outlining expectations of regulators to ensure the continued competence of those who regulate them. In the statement, we indicate that regulators are expected to achieve the following results: Although the Act does not provide information on the impact on regulators and authorized persons with respect to the conduct of non-reserved activities, it is reasonable to assume that Parliament will have a difference in the direction and proportionality of regulatory measures with respect to reserved and non-reserved measures, legal activities. The policy statement does not make such a distinction, but leaves that to each regulator. This may mean that the requirement for “consistent” regulatory measures in Articles 3(3)(a) and 28(3)(a) for jurisdiction over reserved legal activities, or even more broadly, is not met. “However, there is no evidence of widespread problems that LSB`s work shows to date. Although there is a problem with public perception, with a public panel survey showing that 95% felt that checks should be carried out throughout a lawyer`s career. Regulators must take steps to “regularly collect relevant information on the competence of their authorised persons” – this could include spot sampling, proficiency tests or regular re-accreditation. “We want to help regulators take a proportionate, risk-based approach and develop an approach tailored to the professions they regulate, while ensuring a minimum standard of ongoing competency requirements across the sector.” The regulator said the legal industry is “out of step” with others – and consumer expectations – by having “little control over an individual`s competence throughout their career”.

The CPD regime alone is not considered robust enough. It is difficult to contradict LSB`s designation of the dimensions of jurisdiction in paragraph 21 of the Statement of Principles. However, this identification only serves to confirm how extensive, variable and contextual it is. The idea that jurisdiction can be sufficiently defined and ensured prior to its application in the particular circumstances of a client with a specific legal need is difficult to grasp. Ultimately, it is this specific application that is the manifestation of competence (or lack thereof) that matters most. The LSB advises on a set of high expectations of regulators, set out in a policy statement setting out guiding principles and acceptable methods for promoting good conduct to ensure continued competence. Instead of moving from fear of a possible lack of competence to mandatory requirements for a universal guarantee of competence (which the LSB recognises as “difficult” and will require “more complex policy development” by regulators), the lack of evidence could have served as a starting point.