Ongoing competence 

CILEx Regulation’s Danielle Rowles explains the Legal Services Board’s recently published policy update on assuring the ongoing competence of lawyers

In July 2022, the Legal Services Board (LSB) issued a statement of policy setting out its expectations of approved regulators in relation to assuring the ongoing competence of lawyers, particularly focusing on methods to assure individuals have the necessary skills, knowledge and behaviours required to provide legal services to members of the public.

Prior to its publication, the LSB considered the findings of independent research, cross-sector engagement, a call for evidence and public consultation.

What does the policy hope to achieve?

The statement of policy sets out four outcomes that the LSB believes approved regulators must pursue:

• Set the standards of competence that authorised persons should meet at the point of authorisation and throughout their careers;
• Regularly determine the levels of competence within the profession(s) they regulate and identify areas where competence may need to be improved;
• Make appropriate interventions to ensure standards of competence are maintained across the profession(s) they regulate; and
• Take suitable remedial action when standards of competence are not met by individual authorised persons.

Following the publication of the statement of policy, the LSB Chair, Dr Helen Phillips, said: “Lawyers have a vital role to play in maintaining the fabric of our democratic society. The public must be able to have confidence that they have the right skills, knowledge and behaviours to protect our interests, enforce our rights and keep us safe. The changes introduced will mean regulators provide greater assurance that their regulated professionals remain competent throughout their careers, not just when they enter the profession.

“[The LSB’s] work in this area concluded that no one can currently say, with any degree of confidence, how often competence issues arise among regulated lawyers. Addressing this gap will not just promote the interests of the public and consumers, it should also be in the interests of the profession and the fair and effective administration of justice.

“Each regulator will need to develop an evidence-based approach to implementing our policy that is suitable for their regulated community. We will monitor the regulators’ progress and continue to work with the sector to provide consumers with fairer outcomes, stronger confidence and better services.”

What is CILEx Regulation doing to implement the changes?

The LSB has indicated that it expects approved regulators to have fully implemented measures relating to assuring ongoing competence by January 2024 and has asked for progress updates to be provided by January 2023.

The statement of policy outlines some activities that approved regulators may want to undertake to determine the competence of its regulated community, including thematic reviews for different areas of practice, carrying out spot checks and file reviews of regulated individuals’ work, considering feedback from supervisors, peers and clients, and requesting information from other organisations such as the Legal Ombudsman, disciplinary tribunals and government agencies.

“The LSB has indicated that it expects approved regulators to have fully implemented measures relating to assuring ongoing competence by January 2024” 

From there, approved regulators will then need to consider the types of measures that can be utilised to ensure good standards of competence are maintained and that appropriate steps for remedial action are in place and can be taken where the standard of competence is not met.

In response to the LSB’s statement of policy, CILEx Regulation (CRL) has started to review its existing arrangements for assuring professional competence across its regulated community, including the continuing professional development (CPD) regulations and other reaccreditation measures. CRL is also considering the requirements of regulators of other professional sectors that already have established revalidation and supervision processes in place to monitor ongoing competence, such as healthcare, to ascertain whether any lessons can be learned from these sectors.

CRL also intends to work with other approved regulators and stakeholders to try and achieve a consistent approach across the sector, in the interests of consumers of legal services. It will be important for CRL to engage with members of CILEX and other regulated individuals as well, to seek their views on any proposed changes to the existing regulatory arrangements.

Danielle Rowles is practitioner authorisation and supervision manager at CILEx Regulation