Perceived strengths and weaknesses of the current system

2.105     This section now moves from content to more structural issues. Many stakeholders were broadly satisfied with the operation of legal education. Any dissatisfaction tended to be voiced by the ‘grassroots’ of the professions and by some students. Most of this dissatisfaction related directly to issues of access, cost and diversity, though concerns about the quality of some of the training also emerged.

2.106     The dominant opinion derived from the research is that the system of LSET works well, but there is room for improvement. Participants in this research, however, struggled to articulate a clear future vision. Some of the reasons for that struggle will become more apparent in Chapter 3, and the issue of future-readiness is returned to later in the report.

2.107     Five themes emerge from the data as central to any debate about preserving the current strengths of LSET while addressing weaknesses and ensuring fitness for the future: quality; consistency of levels of attainment; mobility and career progression; access, numbers and cost and, finally, the effectiveness of CPD. In this chapter, these issues will be considered in more detail.

(International) quality

Debates about the impacts of globalization on the legal profession are now well developed. Yet the way structures and processes of legal education interact with and may even be changed by processes of globalization has received considerably less attention than debates about the relevance of curriculum content for ‘global lawyers’. As a result, the impacts of processes of globalization on the very structure of legal education, the regulation of education providers and the role of education in maintaining professional values and competency levels are all in urgent need of analysis.

Faulconbridge and Muzio (2009)

2.108     The significance of English law as a jurisdiction of choice in international trade and commerce is widely recognised. This recognition is of major importance to the UK economy, and supports the reputation of the system both domestically and internationally. Lady Justice Hallett (2012) has pointed out:

The British legal profession and the judiciary, produced from amongst its ranks, are currently held in high esteem throughout the world. Their reputation for professionalism and integrity is second to none. As a result the UK attracts work (on a conservative estimate £3.2 billion in 2009) and we attract requests for assistance from developed and developing counties from every continent. We are constantly being asked to provide British judges and lawyers to advise other jurisdictions on how best to develop and sustain robust legal systems and to provide advocacy and judicial training.[1]

2.109     The quality and international standing of English and Welsh lawyers were widely declared by participants in focus groups and interviews and respondents to discussion papers, and the quality of education and training was commonly inferred. Whilst many of these comments were general assertions, they also reflected a significant foundation of experience:

We see lawyers from virtually every country in the world, and collectively practise in many of them. An English legal education is a good legal education.

City of London Law Society response to Discussion Paper 01/2012

Our courts and legal system could not possibly have the universal reputation that they have if the lawyers who operate it were being educated and trained inappropriately.

Chancery Bar Association response to Discussion Paper 01/2012

2.110     A considerable number of similar comments were received in responses to Discussion Papers, in the online survey, and in some of the focus groups and interviews. Many of these also emphasised that the LETR should not do anything that would diminish that reputation, and the international competitiveness of the law of England and Wales.

2.111     In terms of isolating those features that contribute to the standing of the English and Welsh professions, a number of respondents emphasised the commitment to maintaining what was often referred to as a ‘gold standard’ of qualification. This could mean something different for different professions. For some, whether in respect of degree courses or specific professional training, it was the basic rigour of the qualification and its assessment, as one patent attorney observed:

… the UK profession has a world-wide reputation for excellence. If you’re a fellow of the Chartered Institute of Patent Attorneys, actually people come to you when they’ve got something hard to do … [Y]ou have no control over the standard of European attorneys, that’s down to the EPO, and the EPO alone – but you can control the standards of UK attorneys … the profession basically controls itself. And that’s why people would choose a UK attorney to represent them before the EPO, because by virtue of being trained in the UK, qualified in the UK, they expect that higher standard.

2.112     Others, across a range of occupations, highlighted the significance of good quality work-based learning. Being based in an international practice environment in the UK – and particularly London – itself creates the opportunity to build quality, by exposing trainees to high level commercial and international work that might not be available in many jurisdictions. Whether this required training individuals in a radically different skill set from those doing other categories of work was perhaps more moot; one barrister, for example, did not think that the training was necessarily or substantially more ‘international’ in design, but was rather ‘domestic training in disputes involving international parties’. As noted above more generally, the training contract and pupillage were viewed as a defining feature of the education and training system; characterised, for example, by the City of London Law Society as the ‘jewel in the crown’.[2] The other professions similarly tend to see the work-based aspect of training as essential to maintaining high standards.

2.113     The international standard of English and Welsh legal education can be assessed by objective measures. Domestically, institutions and courses are quality assured, but there is no equivalent international benchmark. Continuing international demand for UK legal qualifications can be seen as a plausible proxy for quality, and undergraduate and academic postgraduate courses continue to recruit strongly in the global market, despite increasing competition from continental Europe, North America and Australia. Official figures indicate that 22% of law students at UK universities are domiciled overseas (UKCISA, 2012), including nearly 80% of (academic) law postgraduates. This places law in the top four subject areas by level of international recruitment, behind business studies and engineering and technology. The Bar also continues to draw international students: about a third of BVC/BPTC students annually tend to be international (BSB response to Discussion Paper 01/2012), and over 50% of those called to the Bar in 2010/11 were non-UK nationals. (Equivalent data are not published for the LPC.) The top tier of UK universities performs well in global rankings.[3]

2.114     Nevertheless concerns were expressed by respondents about the relative quality and competitiveness of both the LLM and the professional qualification compared with the US system. Lawyers who are qualified in other countries may become qualified under the New York Bar by taking an LLM course in a US University and thereafter passing the New York Bar Examination. Subsequently the visa rules allow them to practise for one year in a US law firm before they must return to their country of origin, or go elsewhere. This scheme allows a real understanding of US law to be developed within 2-3 years, and it is argued[4] has become the most important method of qualification as ‘an international lawyer’. In comparison the system of requalification in England and Wales is said not to be so attractive.[5] A very different view also appears:

… effectively the New York Bar qualification de-values itself. As a purchaser of those individuals to come and work at your firm, … you’re going to say to yourself ‘well everyone’s got that, it’s frankly not good enough to do this job so I’m not going to set that much store by it’ and then people will stop taking it, and they’ll be doing something else that employers consider more effective.

Solicitor

2.115     The concerns expressed may therefore be misplaced, and the report returns to this issue in discussing comparability of standards in Chapter 5.

Consistency of standards

2.116     At the same time as recognising the international quality of the top end of the LSET ‘product’, some concerns were raised about the consistency of levels of attainment across both academic and professional awards. These concerns were particularly apparent in the Bar and solicitors’ professions, where there is a greater diversity of providers and ‘product’. It is possible that at least some of the variations in views recorded earlier in this chapter are reflective of that diversity and the variety of experiences that the system accommodates. The issue of consistency cannot be addressed in the context of most forms of work-based learning across the sector because, currently, any appraisal is a matter primarily for the employer/supervisor, without significant external comparison or validation.

2.117     Two particular points of inconsistency were mentioned in the LETR research. Certain respondents identified inconsistencies in the breadth or depth of coverage of the ‘core’ subjects provided under the prescribed curricula of different universities. Others complained of inconsistency of standards and comparability as between equivalent qualifications awarded by different institutions. Responses raising inconsistency as an issue included some key institutional respondents and providers.

2.118     In relation to the law degree, respondents reflected more widespread concerns about ‘grade inflation’, the increasing numbers of upper seconds, and perceived variability between them:

I think the focus on the standard of degree is perhaps a little outdated now. I think degrees vary so widely and what a 2:1 means at one university is vastly different from another. So I’m slightly dubious about that as a standard.

Barrister

The problem is the diversity. Law degrees vary in quality and the assessment methods used.

Academic (online survey)

This was seen to create selection difficulties for employers, particularly as recruitment decisions are increasingly being made on (predicted) degree grades, rather than performance on the LPC or BPTC. The point was also made that uncertainty over standards could have an impact on diversity, as recruiters were wary of moving away from tried and trusted ‘brands’. Interestingly, given the degree of discussion about consistency on the QLD, concerns about consistency barely arose in discussions about the GDL which covers the same ground.

2.119     The LPC generated a number of strong views, where concerns about consistency uncovered larger issues for some about the programme’s perceived lack of underlying rigour. As the comments below indicate, variation in assessment methods and practices may account for much of the perception of inconsistency.

LPC courses are more or less farcical when one institution has, for example, a take away drafting assessment and other institutions do not. Students are quite able to get others to do their work for them when it is not done in supervised conditions. One student complained on failing the LPC that he would have been able to do the drafting assessment in non-examination conditions at another institution and would thereby have passed. The process of external examining is a very basic safeguard, one step up from mere face-saving, based on subjective views of a range of individuals with varying experience and little authority to deal with their concerns. They maintain a certain rigour but the resultant assessment instruments allow competency to be measured on a wide spectrum.

Academic (online survey)

The vocational stage of education for solicitors is currently characterised by varying standards of provision across those institutions that offer the programme. While the providers are currently ‘policed’ by SRA external examiners, LPC assessments are nevertheless of variable standard and content. This can be confusing for employers and students.

Kaplan Law School response to Discussion Paper 02/2012

Current assessments are not assessed vigorously enough and are unrealistic, with little practical application.

Junior Lawyers’ Division response to Discussion Paper 02/2012

2.120     CILEx courses and the BPTC take contrasting approaches to assessment from the LLB and LPC. CILEx level 6 law and practice papers are set centrally, ‘so teacher and examiner are separate: students can only rely on past papers to anticipate what might be in an exam. We believe this creates a consistent and reliable standard’.[6] It is notable that, in interviews and focus groups, no issues of consistency were raised, though there was some recognition that consistency was bought at some cost to both flexibility and, in assessment, verisimilitude to practice, though the latter problem is not unique to CILEx course assessments.

2.121     The BPTC, by comparison, has moved to a half-way house with a mix of internal and centrally-set assessments.[7] This change followed the 2008 Wood Report’s recommendation that the knowledge-based areas (civil and criminal litigation, professional ethics), should be assessed by a mix of centrally set and assessed multiple choice questions, and short answer questions that are centrally set but marked locally against a standard set of assessment criteria.

2.122     The data gathered does tend to suggest that any move to more centralised assessments is likely to be controversial. For example, while it is supported by Kaplan, based on their experience of QLTS, it is regarded by the University of Law as a retrograde step which, by separating the assessment from the learning, would take the LPC backwards (see responses to Discussion Paper 02/2012).[8]

2.123     Implementation of centralised assessments can be challenging, as demonstrated by the change process undertaken by the BSB, (acknowledged in response to Discussion Paper 01/2012). This was exacerbated by student complaints regarding the fairness of the summer assessment in 2012. A small number of comments was received on this from students, providers and practitioners. One of the more constructive highlighted the importance of building in sufficient lead-time and trialling into any change process, and possible implications for the LETR.

[O]ur experience of introducing central assessments, which has come from the BPTC, has not been smooth and so if there was to be any sort of transition in the future to more, I don’t know, national qualifications which I suppose is a possibility I would think there really has to be quite a long lead-in time to that – lots of trialling and very strong systems in place before that was introduced … I think there’s been a lot of things that it’s thrown up that we perhaps hadn’t expected and it’s been a tremendous amount of work. I think if you spoke to anybody from any of the providers I think they’d say the same thing.

Academic (online survey)

2.124     The question then is, if inconsistency is an acknowledged weakness of the current system, whether there are mechanisms – such as those employed in the QLTS – that can more robustly secure a consistent standard of attainment, and the extent to which standing–setting or assessment need be centralised?[9]

Mobility/career progression

2.125     Another perceived weakness of the current system is poor mobility in terms of transfer between professions, or parts of a profession, dual qualification, mobility between full and partial titles, and partial qualifications under, eg, EU free movement provisions.

2.126     Examples include:

• an LPC graduate looking for alternative forms of employment in the regulated sector (eg, by qualifying with CILEx) as a result of not finding a training contract;
• a Chartered Legal Executive who wishes to become either a solicitor or barrister, or a registered trade mark attorney who wishes to become a solicitor;
• a barrister who wishes to move in-house from the self-employed Bar;
• a French notary who wishes to practise out of London.

2.127     With multiple professional titles there is a potential network of permitted and exempted pathways. In some instances, for example, as between Chartered Legal Executive and solicitor there is a clear transfer route (though the actual process of transfer may not be so straightforward), and in others (as between Chartered Legal Executive and barrister), there is equally clearly none (since CILEx Fellows are not ‘graduates’ by virtue of that qualification). In discussion respondents pointed out a number of anomalies such as the lack of transferability/reciprocity between registered trade mark attorneys and solicitors; the need for barristers to take the formal step of giving-up independent practice to move in-house; and the limits on Chartered Legal Executives applying to the Bar.

2.128     It may be that few would wish to take these steps. It may not be easy to predict demand for something that does not currently exist. Three potential issues seem worthy of consideration.

2.129     First, a system should not create barriers to pursuing a career without a risk-based justification. Regulatory constraints may not be transparent.

I currently have four years of work – more than would be done under a training contract – but because I did not complete my LPC before gaining enough work to complete my Fellowship I still have to sit a two year training contract (if I ever get one, my lack of degree seems to be an issue because I did not take the traditional route). Surely the four years I already have should have covered everything a training contract would?

CILEx member (online survey)

Mobility and horizontal mobility within the sector may become an increasingly critical issue for all the regulated professions if the market becomes more fluid. There are a number of problems in the existing set of LSET structures created by a lack of defined ‘off-ramps’ and ‘on-ramps’. Examples of those ‘blocked’ in the existing structure include individuals who are part qualified and decide they are on the wrong pathway; those who are prevented by market conditions from completing a qualification (eg, a BPTC graduate who cannot get a pupillage) and those individuals who wish to develop a particular skill set further than they can under an existing title.

2.130     Second there may be specific equality and diversity effects in restricting vertical mobility, eg, in preventing a paralegal from ‘moving-up’ to a regulated title:

The challenge is therefore to accept and embrace the diversity of legal professionals operating at different levels and in different areas within the legal services sector whilst endeavouring to ensure that those who are willing and able to cross-qualify sideways or ‘upwards’ are able to do so. This is where the regulatory attention on diversity and social mobility in the legal education and training context should fall and we would look with interest upon any recommendations for positive change in this area.

Legal Education and Training Group response to Discussion Paper 01/2012

2.131     Third, European free movement provisions add to the complexity of pathways (by adding registered foreign lawyers, Bar Transfer Test (BTT) and Qualified Lawyer Transfer Scheme (QLTS) graduates and transferees in the smaller professions) and need to be factored-in. For some of the smaller regulators, for whom these issues have yet to arise in practice, restricted practising certificates may be an option. Possible changes to the Mutual Recognition Directive, permitting mobility in cases where a migrant can claim partial access to a reserved activity could be perceived as more problematic for the professions, allowing in outsiders without sufficient knowledge of the law and procedure in England and Wales.

Access, cost and numbers

2.132     The largest concerns among those who were critical of the system related to growing student numbers and the escalating cost of qualification. Despite the increase in fees, demand for undergraduate level law remains high and, anecdotally, a number of university law schools anticipate scope for further expansion. In conjunction with numbers graduating with a GDL this popularity has enabled the vocational education sector, and particularly the University of Law and BPP (the two largest private providers), to grow rapidly since the 1990s, even though only half of law graduates progress to vocational training. However, there are recent signs that a plateau has been reached with most providers now having excess capacity.[10] The recent announcement by Oxford Brookes University that it intends to close its LPC course in 2014 may mark the start of shrinkage and consolidation of the LPC market. Nonetheless, despite excess capacity and contraction of the market, there are still currently more LPC graduates than training contracts, creating a further bottleneck in the system.

2.133     Numbers seeking access to the BPTC, despite the enormous difficulties of obtaining pupillage, continue to grow (Bar Council/BSB, 2012).

2.134     It is clear from analysis of the data that there is a significant level of concern, if not anger, among those who have invested much time and money in the initial stages of education and then been unable to find qualifying employment within the regulated sector. Respondents mentioned:

• lack of initial information about the likelihood of obtaining the right kind of employment;
• fears of – and experiences perceived to have involved – discrimination or unfair disadvantage in recruitment, and particularly the perception that the system only ‘works’ for people with certain kinds of attributes (discussed further below);
• being left ‘in limbo’ with no recognisable status if an individual is unable to obtain the right kind of employment to qualify;
• potential for exploitation if entrants are required to undertake unpaid internships and/or lengthy periods as paralegals in the hope of obtaining the right kind of employment;
• lack of recognition of prior experience, and other disadvantages experienced by mature entrants.

2.135     The prospects for resolution of these issues need to be considered in the context of the structural changes now facing the sector, which are discussed further in Chapter 3.

2.136     The potential shift in balance between trainees and paralegals in law firms, and the impact on recruitment, is a key issue. There are reports of firms diverting recruitment substantially or entirely away from conventional training contracts, making the paralegal role a common point of entry, from which trainees could subsequently be selected according to need and capacity. Some evidence was obtained of firms making the process even more attenuated, so that those seeking work must first undertake an unpaid work placement or internship even to be considered for a paralegal role. This not only has implications for training contracts, but for the development of at least part of the paralegal workforce, as LPC/BPTC paralegals step into roles that might previously have been filled by CILEx members or even unqualified clerks or secretaries.

2.137     Options, beyond paralegal work, for those seeking entry to the Bar are, if anything, more narrow given the number of BPTC graduates chasing a very small number of pupillages. It is unlikely that, if implemented, proposals in the Burton Report (COIC, 2012) to create additional pupil numbers will make a significant difference. The likelihood of further attrition in the wake of changes to both legal aid and personal injury funding also cannot be ruled out.

2.138     In response to this situation respondents made the following suggestions:

• LPC places should be confined to those who have already obtained training contracts, as in Northern Ireland;
• vocational education for solicitors should be absorbed entirely into the workplace, supported if necessary by consortia of employers, and
• the BPTC could be confined to those who have already obtained pupillage, or be blended with pupillage in a model similar to that used by CILEx, supported perhaps by the Inns.

2.139     There was a lack of consensus about whether, if the regulation of periods of supervised practice were changed to allow employment in a broader range of contexts, this would enable more people to qualify. Some felt that the practice of employing paralegals with no guarantee of progression was now so common that employers would simply continue to hire paralegals rather than undertake the additional administration of a period of supervised practice. Others felt that the market for solicitors and barristers was unlikely to increase, but that different roles, or more paralegal roles would become the norm in any event. Some respondents, however, felt that there was an appetite, in some sectors (for example, in-house practice) to provide supervised practice where that is currently blocked.

2.140     Cost and bottlenecks obviously have implications for access, diversity and social mobility. In Discussion Paper 02/2011, it was observed that the legal profession appears to be performing ‘well’ in terms of what might rather crudely be called ‘middle class’ diversity, but that social mobility was actually in decline. The paper concluded (para. 113)

In terms of access to the profession, the qualification process, requiring as it does a mix of strong credentials and ascriptive attributes, creates successive barriers to entry which tend significantly to reduce the opportunities for those from the most disadvantaged backgrounds. There are unlikely to be ‘quick fixes’ to a problem that is, in many respects, shaped by intergenerational patterns of advantage and disadvantage.

2.141     Despite the good intentions of some legal services sector employers, there are distinct barriers to entry into the legal professions, arguably more challenging than the barriers to entry to Higher Education generally. Place of study is highly relevant in accessing crucial vacation schemes and internships and obtaining training contracts and pupillage.[11]

2.142     Prospective applicants may be affected in two ways: those who lack the social and economic capital to be able to take the risk of not succeeding may be deterred from competing at all[12], and in a ‘buyer’s market’ employers may be averse to taking recruitment ‘risks’. One respondent thus described the recruitment process as ‘infected by a safe approach’.[13]

2.143     The professions’ strong preference for, and belief in, the reliability of academic results and credentials also comes out strongly in the quantitative data, as Table 2.10 demonstrates. They look for ‘good A levels and a 2:1 from a good university’. 95% of respondents to the survey, on average, thought that academic qualifications were a reliable system for determining access to professional education.[14]

 

Table 2.10: Pre-entry qualifications; reliability of using results from secondary, further or higher education, or specially administered tests, to determine access to professional education and training

Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).

 

	Missing	Completely Unreliable	Unreliable	Somewhat unreliable	No effect	Somewhat reliable	Reliable	Completely reliable
Barristers	0.3%	0.6%	0.6%	1.6%	1.6%	20.9%	56.6%	17.7%
Solicitors	0.0%	0.0%	0.6%	3.1%	1.8%	29.8%	49.4%	15.3%
CILEx members	0.6%	0.0%	0.6%	0.0%	1.2%	18.6%	46.6%	32.3%
Weighted Average	0.3%	0.1%	0.6%	1.7%	1.6%	24.1%	50.0%	21.5%
All Respondents	0.3%	0.3%	0.7%	1.9%	2.0%	24.2%	51.6%	19.1%

 

2.144     This can be juxtaposed against a number of responses that recognised the importance of diversity, and demonstrated commitment to diversity initiatives such as PRIME. However, there was limited evidence, in responses to Discussion Paper 02/2011, as to the amount of difference such initiatives will actually make to the workplace. As a student focus group participant observed:

There are a few diversity access schemes and bursaries, but through my research, it seems to me that you’ve got to be kind of exceptionally bright and from a really poor background, as in you know gone through foster care and the only person in your family to go to university and things like that.

2.145     There were some responses which identified ways in which institutions and employers might go further:

… performance (more than A-Level and tertiary-level achievement), is an accurate indicator of a student’s employment and social mobility prospects, we suggest deeper, sustained and more meaningful contact with students, parents and teachers, at this stage, as opposed to more superficial contact afforded by some current work-experience initiatives.

Freshfields response to Discussion Paper 02/2011

2.146     Although the Bar and solicitors look for excellence in academic qualifications and are risk averse in selecting pupils and trainees; CILEx members, costs lawyers and licensed conveyancers are far more socially diverse occupations. The impact on these professions of an influx of graduates who cannot get into the Bar and solicitors’ professions might well affect this social diversity. Further, if those graduates see these roles essentially as stepping stones to other ‘more prestigious’ licensed titles that might also cause perturbations in the market beyond. The significance of newly emerging apprenticeships also needs to be factored in, as these may be seen as a more viable way of increasing diversity at entry level,[15] and, by attracting government funding at least at the outset, they have obvious attractions to employers. All of these developments have some further effect on the make-up of the unregulated sector, which is discussed in Chapter 3.

Effectiveness of CPD

2.147     Regulated continuing professional development (CPD) exists in many professions, but there is increasing concern about whether CPD is a sufficient guarantor of continuing competence. Attitudes to CPD have been explored in both the LETR research and a range of other studies and consultations, noted above.

2.148     There is consensus among respondents that there is value in undertaking CPD, though respondents have mixed views about whether CPD should be a regulated activity. Some respondents suggest that professionals should be trusted to do their job in their own way. But there is also an acknowledgement that other professionals might need some motivation to keep up with changes (see Table 2.12 below).

2.149     Some respondents took the view that CPD was only carried out because it is required by the regulator:

There’s too much of it – I think it’s a waste of space quite frankly. We have to do it because we’re told to do it. I mean I think it’s ridiculous quite frankly. The amount of time I spend keeping up with stuff because I have to for my job but I do it on cases. That doesn’t count but – you know – I have to go along to series of lectures …

Barrister

2.150     This quotation also corresponds with a clear view about the value of ‘on the job’ learning, ie, that, as a professional you are learning as you work. This perception is even more prevalent than average for CILEx members and the Bar (Table 2.11).

 

Table 2.11: On-the-job learning; reliability of the knowledge that legal professionals acquire through their day-to-day experience

Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).

 

	Missing	Completely Unreliable	Unreliable	Somewhat unreliable	No effect	Somewhat reliable	Reliable	Completely reliable
Barristers	0.3%	0.6%	0.6%	1.6%	1.6%	20.9%	56.6%	17.7%
Solicitors	0.0%	0.0%	0.6%	3.1%	1.8%	29.8%	49.4%	15.3%
CILEx members	0.6%	0.0%	0.6%	0.0%	1.2%	18.6%	46.6%	32.3%
Weighted Average	0.3%	0.1%	0.6%	1.7%	1.6%	24.1%	50.0%	21.5%
All Respondents	0.3%	0.3%	0.7%	1.9%	2.0%	24.2%	51.6%	19.1%

 

2.151     There is a clear majority view in the survey that mandatory CPD is a reliable indicator of competence (Table 2.12).[16] This is to be contrasted with the more detailed criticisms, set out below, about the effectiveness of CPD schemes as regulatory tools which in fact assure, rather than simply permit, continuing competence.

 

Table 2.12: Continuing professional development; reliability of training required by a regulator to ensure that legal professionals are competent in, and aware of developments in their field of practice

Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).

 

	Missing	Completely Unreliable	Unreliable	Somewhat unreliable	No effect	Somewhat reliable	Reliable	Completely reliable
Barristers	0.3%	7.4%	7.1%	6.4%	10.3%	36.3%	28.3%	3.9%
Solicitors	0.0%	1.5%	1.2%	4.0%	4.3%	28.2%	52.1%	8.6%
CILEx members	0.0%	0.0%	0.6%	3.1%	3.7%	17.3%	56.8%	18.5%
Weighted Average	0.1%	2.3%	2.3%	4.2%	5.4%	26.3%	48.6%	10.9%
All Respondents	0.4%	2.8%	2.8%	4.4%	5.9%	28.2%	45.6%	9.9%

 

2.152     A majority of stakeholders seemed to agree that CPD schemes do not achieve all they are supposed to achieve. Many thought current schemes – with the exception of some provision by specialist groups – were ‘box ticking exercises’, concerned only with compliance and not the learning or enhanced practice that should result from undertaking the CPD activity:

… we need to think about actually where is it not actually working at the moment? And it’s in continuing education which, to be honest, everybody sees as something you tick the box and hope nobody examines you because you’ve done it as quickly as possible. That’s got to be made a serious issue.

Academic

… there is merit in thinking about whether CPD as it stands – the way it’s run at the moment – is really a valuable or a meaningful way of pursuing professional development. The truth is at the moment most of it is just getting the points. I think the new practitioners’ courses are different. They are more genuinely focussed on professional development. And that can continue … But certainly my feeling about CPD in chambers is that it’s not really meaningful.

Barrister

The current inputs based model does not seem to promote the kind of activity that is beneficial in all cases. Whilst it is impossible to build a model that ensures that CPD will be valuable to all comers, a focus on what is being learnt from CPD, reflection on how to incorporate it into practice and planning for future activities, may all encourage a more productive culture. CPD has to be done in an effective manner; built in and reinforced over time and at a stretching level.

Law Society response to Discussion Paper 01/2012

2.153     A compliance approach was perceived by some to be of benefit only to the CPD providers who charge fees for delivering such courses. Cost was perceived as a barrier for those in sole or small practice in particular or those who could not guarantee that employers would subsidise appropriate activity:

Unlike solicitors, barristers incur a double financial whammy when they enrol on a CPD course – the cost of the course and the loss of income by taking time out of practice to attend the course. I have not seen any plausible justification for increasing the number of CPD hours for barristers.

Barrister (online survey)

I think that Continuing Professional Development is essential in any legal profession and it should not necessarily be restricted to what is necessary to meet the requirements of CILEx or the Law Society. As a parent it isn’t easy to find the time, and the Local Authority I work for, like most, have budget restraints that severely affects training, but 16 hours of training a year is NOT enough to keep abreast of changes and expectations of a professional in practice today.

CILEx member (online survey)

2.154     Some respondents suggested that they found regulated CPD schemes irrelevant in helping to assure quality. Many of these respondents argued that it is the market which ensures that only good, effective professionals remain in practice, as those who do not meet clients’ standards will simply cease to be instructed.

2.155     As the kinds of activity demanded by existing CPD schemes were not perceived to be necessarily the most useful means of maintaining and enhancing competence, some respondents suggested that complete redesign was required.

I’d try and start all over again on how to devise a sensible CPD system … I think people should look at how rigorous it should be, how it’s going to be assessed, but at the same time, make it accessible. I think it’s right that there doesn’t all have to be classroom activity but I’d say that much of it should be.

Academic

2.156     It was, in addition, suggested that regulators could do more to support those in sole practice or small firms where BME individuals might be over-represented. One solicitor suggested treating the whole of CPD from the perspective of risk analysis:

I would scrap CPD. I would scrap that completely and find a different way of doing that. I think looking at what are key components that need to be checked and then the SRA actually being robust about doing that rather than saying you all tick a form and it’s a complete waste of time. So you either have something, and it is checked and followed through, or you just don’t bother with anything at all.

Solicitor

2.157     A range of more administrative concerns were also discussed. These included the pressures on compliance for, for example, those on maternity leave and those (eg, CILEx members) whose employers might prioritise the CPD of other employees, such as solicitors, above their own; and the need for separate accreditations to be sought from different regulators in organisations which included members of more than one profession.

2.158     Finally it should be noted that, in the online survey, increased CPD (likely to be envisaged as increased hours) was strongly opposed by barristers and notaries, while other groups overall were generally evenly split.[17]

2.159     The findings of the CPD review commissioned by the SRA and its recommendations (Henderson et al, 2012) fit well with the findings in this report. These suggest that there should be more flexibility in terms of what is counted for CPD, that external providers of CPD should be further monitored and regulated and that CPD should be better planned and tailored to individual needs. Recommendations to the SRA included:

• authorise independent schemes operated by employers, law societies or affinity groups;
• reconsider the purpose of accreditation (including the possibility of dispensing with the requirement of a proportion of accredited activity);
• require CPD providers to provide more detailed pre-booking information;
• require providers of public CPD to publish online ratings/feedback;
• require providers to report annually to the SRA;
• reconsider the provision that employers are not required to pay for CPD or to release time;
• retain a minimum hours requirement, but of no more than 16 hours;
• require documentation of a learning cycle;
• require individuals to log all their CPD activity, not just the minimum to satisfy regulation;
• implement an auditing process of individuals’ records;
• implement a progressive enforcement and sanctions system;
• review the Management Course Stage 1 for relevance;
• consult the profession more widely on the need for any compulsory CPD components (e.g. ethics).

 

Table 2.13: Practitioners should be required to do more CPD

Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).

	Missing	Completely disagree	Disagree	Somewhat disagree	Neither agree nor disagree	Somewhat agree	Agree	Completely agree
Barristers	1.0%	28.4%	25.5%	18.7%	5.5%	8.4%	8.7%	3.9%
Solicitors	0.9%	5.0%	13.0%	16.8%	14.9%	20.2%	17.1%	12.1%
CILEx Members	0.6%	5.0%	11.9%	21.9%	16.9%	17.5%	18.8%	7.5%
Weighted Average	0.8%	10.0%	15.3%	18.9%	13.5%	16.7%	15.8%	8.8%
All Respondents	1.2%	11.6%	15.7%	16.8%	12.3%	15.3%	17.2%	9.8%

 

 

2.160     The BSB Review on CPD arrived at broadly similar findings, but its conclusions were a little different, suggesting the BSB should:

• increase the range of approved CPD activities;
• correspondingly increase the number of CPD hours which established practitioners must undertake each year;
• raise the standard of record-keeping;
• simplify the system of reporting and
• simplify enforcement of the CPD regulations.

2.161     The proposal for increased CPD hours in particular has met with strong opposition from the profession, and this was reflected in responses from the Bar to the LETR online survey. The BSB has commissioned a CPD Steering Group to follow-up and implement the CPD Review, and this is expected to report its final conclusions in Spring/Summer 2013.

2.162     The concurrent IPS study evaluated a number of other CPD schemes, drawing conclusions about both inefficiency in purely ‘inputs’ schemes and the difficulty, for a regulator, of effectively measuring pure ‘outputs’. The new scheme, to be implemented in 2014, was developed by reference to a revised definition of CPD aligned to the regulatory objectives of the LSA 2007 related to the public interest and the protection of consumers. It moves away from input-led approaches and adopts a cyclical model involving ‘reflection, planning, action and evaluation’. In the annual cycle, each member must record nine activities, of which at least one must relate to ethics. No activities will be accredited by IPS and both planned and unplanned[18] learning is accommodated in the scheme. The new model invites individuals to refer their planning to the competency framework to be used for the period of qualifying employment that is a precursor to application for Chartered status.

2.163     Although the LETR research data addresses issues across the sector, a number of themes in these investigations align very closely with the findings and conclusions of the reviews by the individual professions: cost; ‘box ticking’ compliance; exclusion of relevant activity; differential impacts on sole practitioners and small groups.

2.164     Issues that arose clearly in the LETR research data included the extent to which CPD activity should be permitted outside one’s own specialism and detailed discussion of revalidation or re-accreditation. Some respondents, including the Legal Services Consumer Panel (LSCP), favoured re-accreditation and some in-house lawyers were already very familiar with substantial internal procedures for appraisal and review. Others were more wary, with fears about cost and what re-accreditation might entail. They were also concerned that re-accreditation might duplicate other processes and about who, appropriately, might carry out such a review.

I think re-evaluation is a problem. As somebody who deals with professional negligence claims against solicitors, some of the things you see happen are awful. And you think if there was some sort of re-evaluation process there in terms of what they were doing, would it have made a difference, I don’t know. But the thought of trying to put that on the profession, I would have thought would go down like a lead balloon.

Solicitor

2.165     Given its sector-wide remit, the research investigated both the possibility of increased cross-recognition of activity across the sector and the viability of a single sector-wide scheme (present in some non-law disciplines, see Literature Review, Chapter 5). There was some support for the latter.

This might be worth considering, depending on how any new model was derived and implemented. Needs vary tremendously and so any overall scheme would need to be flexible enough to accommodate this – which may in turn lead to such a scheme being too all-embracing and vague.

BSB response to Discussion Paper 01/2012

This is a sensible suggestion in so far as the future deliverers of legal services will be less defined by their badge and more by their demonstrable competences. Nonetheless CPD should recognise the link between the scope of competency (perhaps this is defined by professional status) and the CPD requirement placed upon them.

CILEx Law School (formerly ILEX Tutorial College) response to Discussion Paper 01/2012

2.166     The question of mandatory content was pursued, including, but not confined to reinforcement of ethics and equality and diversity training[19] as well as management training and specific CPD for those intending to practise in Wales. The issue of mandatory content is discussed in further depth in Chapter 5.

Summary

2.167     The perceived inconsistency of standards across the system is a challenging issue for the LETR, particularly in relation to the QLD and LPC. Such consistency problems are a function of scale given the number of different providers of the QLD and the LPC, and can be difficult for regulators to address in a proportionate fashion without risking the benefits of the system. Potential solutions to this critical issue are considered in Chapter 4.

2.168     CPD also stands out as an important issue. The extent to which CPD schemes adequately assure competence is an open question, though it is noted that many of the regulators are already working on changes.

2.169     The cost of training coupled with the oversupply of qualified persons may not be a regulatory issue. However the concomitant, critical issue of access is of regulatory concern and needs to be addressed in the complex balance to be made between diversity and business risk.

 

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