Annex I Interim Equality Impact Assessment
1.1. An equality impact assessment (EIA) is an analysis of a proposed policy to establish whether it has or may have different effects for individuals with any of the protected characteristics defined by s.4, Equality Act 2010. These are:
- age;
- disability;
- gender reassignment;
- marriage and civil partnership;
- pregnancy and maternity;
- race;
- religion or belief;
- sex;
- sexual orientation.
1.2. Given the remit of this research, this assessment has been extended beyond the statutory requirements to consider issues of social diversity and mobility. The umbrella term of EDSM can be used to describe both concepts. Assessment should identify both positive and negative effects of the proposed policy. It is, of course, possible that a policy designed to have positive effects for one EDSM characteristic inadvertently has negative effects for another.
1.3. The usual process is for a policy to be drafted and subsequently to be assessed for possible differential impact, a process which may include the collection of data. The research-led approach of the first stage of LETR has, as described in Chapter 1 and Appendix D, worked from the perspective of developing the recommendations from the data. It is, therefore, possible to conceive of the entire research process as a form of EIA of both existing policies and, as the work progressed, possible solutions which have informed the recommendations.
1.4. Equality issues were identified in interviews and focus groups. Responses to Discussion Paper 02/2011 and the work of the Equality, Diversity and Social Mobility Expert Advisory Group chaired by Professor Gus John have also been considered. The members of the Young Lawyers Forum also discussed issues of equality and diversity in some depth. These responses have been woven into discussion of relevant issues as they arise in the chapters of this report.
1.5. As has been discussed in earlier chapters, the different professions have very different EDSM profiles and may already be addressing issues in different ways. This interim EIA, then, is at a comparatively high level of analysis, and discusses possible positive and negative impacts of each recommendation on EDSM groups. It is provided as a starting point for the regulators as they consider the implementation and detail of each recommendation.
1.6. There are usually four possible outcomes of an EIA analysis (EHRC, 2009:4):
Outcome 1: No major change: the EIA demonstrates the policy is robust and there is no potential for discrimination or adverse impact. All opportunities to promote equality have been taken.
Outcome 2: Adjust the policy: the EIA identifies potential problems or missed opportunities. Adjust the policy to remove barriers or better promote equality.
Outcome 3: Continue the policy: the EIA identifies the potential for adverse impact or missed opportunities to promote equality. Clearly set out the justifications for continuing with it. The justification should be included in the EIA and must be in line with the duty to have due regard. For the most important relevant policies, compelling reasons will be needed.
Outcome 4: Stop and remove the policy: the policy shows actual or potential unlawful discrimination. It must be stopped and removed or changed.
1.7. The approach that has been taken in the table which follows has been to analyse, on the basis of the data collected and by reference to the various EDSM characteristics, anticipated positive and negative implications of each recommendation. Because of the level of abstraction involved the impacts identified tend to be quite generic benefits and risks. Actions required at this stage are, therefore, in the main a combination of EHRC’s outcomes 1 and 2, recognising that if the recommendation is to be implemented, further impact assessment will be required in the light of the conditions governing that specific regulated environment. Continued monitoring of possible differential effects is, in a number of cases, also recommended.
1.8. The table also includes a number of ‘recommendations not made’ that are based on policy proposals commonly advanced by respondents in the course of the investigation. Responses here are a combination of outcomes 2 and 3: outcome 2 where the evidence suggests the underlying problem can be addressed more effectively by one of the recommendations; outcome 3 where no change appears to be justified as a proportionate regulatory response.
Recommendations
| Recommendations | Positive impact | Negative impact | Action required |
| Outcomes and standards | |||
| Recommendation 1 Learning outcomes should be prescribed for the knowledge, skills and attributes expected of a competent member of each of the regulated professions. These outcome statements should be supported by additional standards and guidance as necessary. |
Clarity, transparency and consistency of expectations and objective standards for all practitioners and consumers. Provides a consistent benchmark of achievement for those whose choice of study route or location is limited. | Risk that outcomes have differential impact or that assessment of alternative routes is not demonstrably equivalent, prejudicing for example, non-graduate, part-time or older entrants pursuing those routes. | Outcomes and assessment mechanisms need to be equality impact assessed.Monitor the effect on diversity once outcomes are introduced. |
| Recommendation 2 Such guidance should require education and training providers to have appropriate methods in place for setting standards in assessment to ensure that students or trainees have achieved the outcomes prescribed. |
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| Recommendation 3 Learning outcomes for prescribed qualification routes into the regulated professions should be based on occupational analysis of the range of knowledge, skills and attributes required. They should begin with a set of 'day one' learning outcomes that must be achieved before trainees can receive authorisation to practise. These learning outcomes could be cascaded downwards, as appropriate, to outcomes for different initial stages or levels of LSET. Learning outcomes may also be set (see below) for post-qualification activities. |
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| Recommendation 4 Mechanisms should be put in place for regulators to co-ordinate and co-operate with relevant stakeholders including members of their regulated profession, other regulators, educational providers, trainees and consumers, in the setting of learning outcomes and prescription of standards. |
Co-ordination of outcomes between regulators promotes development of alternative but equivalent routes to qualification and robust transfer routes between professions and activities. Such outcomes also facilitate APL for mature entrants and those with paralegal experience.Where activities fall under the aegis of more than one regulator (eg, conveyancing) with practitioners from different equality or socio-economic groups, coordinated and consistent outcomes facilitate equivalence of treatment by other professionals and aid consumer confidence. | Risk that outcomes have differential impact or that assessment of alternative routes is not demonstrably equivalent, prejudicing for example, non-graduate, part-time or older entrants pursuing those routes. | Outcomes and assessment mechanisms need to be equality impact assessed.Monitor the effect on diversity once outcomes are introduced. |
| Recommendation 5 Longer term, further consideration should be given to the development of a common framework of learning outcomes and standards for the legal services sector as a whole. |
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| Recommendations | Positive impact | Negative impact | Action required |
| Content | |||
| Recommendation 6 LSET schemes should include appropriate learning outcomes in respect of professional ethics, legal research, and the demonstration of a range of written and oral communication skills. |
Emphasis on support for writing and oral skills assists those entering from a wide range of socio economic and educational backgrounds. | Potential additional cost or resource where, for example, individuals and groups, particularly if significantly represented in particular routes, require greater levels of input in, eg, writing. | Outcomes and assessment mechanisms need to be equality impact assessed.Monitor the effect on diversity once outcomes are introduced. |
| Recommendation 7 The learning outcomes at initial stages of LSET should include reference (as appropriate to the individual practitioner's role) to an understanding of the relationship between morality and law, the values underpinning the legal system, and the role of lawyers in relation to those values. |
An emphasis on values and ethics enhances equality and diversity awareness in all practitioners and at all levels of service to consumers. | Potential additional cost or resource. | Outcomes and assessment mechanisms need to be equality impact assessed.Monitor the effect on diversity once outcomes are introduced. |
| Recommendation 8 Advocacy training across the sector should pay greater attention to preparing trainees and practitioners in their role and duties as advocates when appearing against self-represented litigants. |
Enhances access to justice for vulnerable members of society. Focus on different advocacy contexts can aid personal plight/small organisations and reduce the burden of subsequent on the job training | Programme designs and assessment mechanisms need to be equality impact assessed. | |
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Recommendation 9 Learning outcomes should be developed for post-qualification continuing learning in the specific areas of:
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An emphasis on values and ethics enhances equality and diversity awareness in all practitioners and at all levels of service to consumers. Potentially supports those in high risk sub-sectors (e.g. sole practice) in which minority groups may be over-represented. Equality and diversity training embeds awareness and treatment in recruitment, with colleagues and for consumers. | If requirements are, or are perceived to involve mandatory attendance at courses, there is a significant cost implication and potential location barriers. | Outcomes and continuing learning frameworks need to be equality impact assessed. Monitor the effect on diversity once outcomes are introduced. |
| Recommendation 10 The balance between Foundations of Legal Knowledge in the Qualifying Law Degree and Graduate Diploma in Law should be reviewed, and the statement of knowledge and skills within the Joint Statement should be reconsidered with particular regard to its consistency with the Law Benchmark statement and in the light of the other recommendations in this report. A broad content specification should be introduced for the Foundation subjects. The revised requirements should, as at present, not exceed 180 credits within a standard three-year Qualifying Law Degree course. |
Retention of the Foundation subjects provides a protective degree of consistency of coverage for entrants from both high and lower status institutions. | Risk that development of and innovation in the undergraduate law degree is conservatively defined by those institutions traditionally preferred by employers. | Implement recommendation. |
| Recommendations | Positive impact | Negative impact | Action required |
| Recommendation 11 There should be a distinct assessment of legal research, writing and critical thinking skills at level 5 or above in the Qualifying Law Degree and in the Graduate Diploma in Law. Educational providers should retain discretion in setting the context and parameters of the task, provided that it is sufficiently substantial to give students a reasonable but challenging opportunity to demonstrate their competence. |
Provides a consistent benchmark of achievement for those whose choice of study route or location is limited and facilitates reasonable adjustment in educational delivery and in assessment. Emphasis on support for writing supports those entering from a wide range of socio economic and educational backgrounds.Acts as an 'aptitude' test in some respects to aid informed entry into later stages of LSET. | Potential additional cost or resource where, for example, individuals and groups, particularly if significantly represented in particular routes, require greater levels of input in, e.g. writing. | Programme designs and assessment mechanisms need to be equality impact assessed. Monitor the effect on diversity once introduced. |
| Recommendation 12 The structure of the Legal Practice Course stage 1 (for intending solicitors) should be modified with a view to increasing flexibility of delivery and the development of specialist pathways. Reduction of the breadth of the required technical knowledge-base is desirable, so as to include an appropriate focus on commercial awareness, and better preparation for alternative practice contexts. The adequacy of advocacy training and education in the preparation and drafting of wills needs to be addressed. |
Focus on different practice contexts can aid personal plight/small organisations and reduce the burden of subsequent on the job training. Improves awareness of alternative routes that may be more accessible/attractive to, e.g. part-time workers. | Risk of early specialisation, particularly where there is limited financial or geographical access to more specialist/non-specialist programmes subsequently limiting practice opportunities. | Monitor effect on diversity, whether there is discrimination against those who have followed some pathways as against others. Allied with the outcomes approach, alternative curricula, methods of delivery and assessment can be developed to support part-time and older entrants. |
| Recommendation 13 On the Bar Professional Training Course (for intending barristers), Resolution of Disputes out of Court should be reviewed to place greater practical emphasis on the skills required by Alternative Dispute Resolution, particularly with regard to mediation advocacy. |
Focus on different advocacy contexts can aid personal plight/small organisations and reduce the burden of subsequent on the job training. | Programme designs and assessment mechanisms need to be equality impact assessed. | |
| Structures | |||
| Recommendation 14 LSET structures which allow different levels or stages (in particular formal education and periods of supervised practice) to take place concurrently should be encouraged where they do not already exist. It should not be mandated. Sequential LSET structures, where formal education is completed before starting supervised practice, should also be permitted where appropriate. In either case, consistency between what is learned in formal education and what is learned in the workplace is encouraged, and facilitated by the setting of 'day one' outcomes. |
Retention of the possibility of a standalone model (where appropriate) seeks to avoid prejudice to those employers who cannot recruit this far in advance. Risk that any discrimination on recruitment by employers becomes entrenched in the system if integrated models alone are mandated. | Risk that if the market does not adapt to provide integrated models where appropriate, the status quo is maintained. | Monitor effect on diversity, whether there is discrimination against those who have followed some routes as against others. Allied with the outcomes approach, alternative curricula, methods of delivery and assessment can be developed to support part-time and older entrants. |
| Recommendations | Positive impact | Negative impact | Action required |
| Recommendation 15 Definitions of minimum or normal periods of supervised practice should be reviewed in order to ensure that individuals are able to qualify or proceed into independent practice at the point of satisfying the required day one outcomes. Arrangements for periods of supervised practice should also be reviewed to remove unnecessary restrictions on training environments and organisations and to facilitate additional opportunities for qualification or independent practice. |
Promotes a wider range of routes to qualification/independent practice that can accommodate a wider range of entrants and a wider range of employers.Reduces risk of exploitation during the period of supervised practice. Provides a consistent benchmark of achievement for those in non-traditional workplaces.Facilitates APL for mature entrants and their employers.
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Risk that increase in range of alternatives does not increase access if e.g. lengthy periods of unpaid internship or paralegal work are in fact required as preconditions of access to periods of supervised practice.Risk that requirements for authorisation have a differential impact on small practices, leading to reduction of opportunity rather than increase. | Monitor effect on diversity, whether there is discrimination against those who have followed some pathways as against others and whether inappropriate exploitation within or on the promise of, access to periods of supervised practice or in pressure to reduce the period of supervised practice is present. Monitor support for and take up of opportunities to offer supervised practice for any diversity implications or in appropriate regulatory constraints. |
| Recommendation 16 Supervisors of periods of supervised practice should receive suitable support and education/training in the role. This should include initial training and periodic refresher or recertification requirements. |
Provides a consistent benchmark of support for all practitioners and students and for consumers. Reduces risk of exploitation during the period of supervised practice. Supports a consistent benchmark of achievement for those in non-traditional workplaces. | Risk that requirements for authorisation and enhancement of supervisory support have a differential impact on small practices, leading to reduction of opportunity rather than increase. | Monitor the effect on diversity once introduced. |
| Recommendation 17 Models of CPD that require participants to plan, implement, evaluate and reflect annually on their training needs and their learning should be adopted where they are not already in place. This approach may, but need not, prescribe minimum hours. If a time requirement is not included, a robust approach to monitoring planning and performance must be developed to ensure appropriate activity is undertaken. Where feasible, much of the supervisory task may be delegated to appropriate entities (including chambers), subject to audit. |
Relaxation of hours and requirements to attend accredited courses reduces cost/travel and facilitates participation by the disabled, part-time workers and those taking career breaks or with caring responsibilities. Allows mentoring and grass roots activities to be developed by and with equality groups and others. | Risk that relaxation allows employers to impede useful learning activity. | Continuing learning frameworks need to be equality impact assessed. Monitor the effect on diversity once introduced. |
| Recommendation 18 There should be regular and appropriate supervision of CPD, and schemes should be audited to ensure that they correspond to appropriate learning outcomes. Audit should be a developmental process involving practitioners, entities and the regulator. |
Facilitates reasonable adjustment and increases access to a wider range of activities (venue, time, mode of delivery, cost) for individuals. | Risk that supervision and audit is or is perceived to involve resource-heavy formal assessment leading to reduction of opportunity rather than increase. | Audit and supervision requirements need to be equality impact assessed. Monitor the effect on diversity once introduced. |
| Recommendations | Positive impact | Negative impact | Action required |
| Recommendation 19 In the short to medium-term, regulators should cooperate with one another to facilitate the cross-recognition of CPD activities, as a step towards more cost-effective CPD and harmonisation of approaches in the longer term. |
Increases access to a wider range of activities (venue, time, mode of delivery, cost) for individuals. | Risk that the norm set for cross-recognition is more stringent than current CPD framework, leading to reduction of opportunity rather than increase. | Outcomes and continuing learning frameworks should themselves be equality impact assessed. Monitor the effect on diversity once introduced. |
| Recommendation 20 In the light of the Milburn Reports on social mobility, conduct standards and guidance governing the offering and conduct of internships and work placements should be put in place. |
Facilitates improved access to a wider range of participants. Reduces risks of exploitation. | Risk that standards and guidance reduce, rather than increase, access to internship and work placement. | Implement recommendation. Monitor the effect on diversity once introduced. |
| Recommendation 21 Work should proceed to develop higher apprenticeship qualifications at levels 5-7 as part of an additional non-graduate pathway into the regulated professions, but the quality and diversity effects of such pathways should be monitored. |
Promotes a wider range of routes to qualification that can accommodate a wider range of entrants and a wider range of employers.Provides a system of career progression that is cost effective for some individuals. | Risk that apprenticeship places are in fact taken up by a wider range of entrants. | Monitor effect on diversity, whether there is discrimination against those who have followed some pathways as against others. |
| Recommendation 22 Within regulated entities, there is no clearly established need to move to individual regulation of paralegals. Regulated entities must however ensure that policies and procedures are in place to deliver adequate levels of supervision and training of paralegal staff, and regulators must ensure that robust audit mechanisms provide assurance that these standards are being met. To ensure consistency and enhance opportunities for career progression and mobility within paralegal work, the development of a single voluntary system of certification/licensing for paralegal staff should also be considered, based on a common set of paralegal outcomes and standards. |
Systems for career progression and voluntary licensing of paralegals provide a cost-effective means of recognition/entry/progression for some individuals (eg, part-time and geographically constrained) individuals and for members of equality groups potentially disadvantaged in traditional recruitment processes.Voluntary registration/licensing of paralegals promotes confidence for consumers, particularly those unable to afford traditional legal services provision. | Risk of uneven implementation if a system of voluntary certification/ licensing is implemented. | Monitor effect on diversity, whether there is discrimination against those who have followed some pathways as against others. |
| Recommendation 23 Consideration should be given by the Legal Services Board and representative bodies to the role of voluntary quality schemes in assuring the standards of independent paralegal providers outside the existing scheme of regulation. The Legal Services Board may wish to consider this issue as part of its work on the reservation and regulation of general legal advice. |
Such work has the potential to enhance confidence for consumers, particularly those unable to afford traditional legal services provision. Testing of the extent to which risks of the unregulated sector have differential impact on equality groups and those of differing socio-economic status. Investigation of the extent to which those practising in this sector are members of such groups. | Risk of uneven implementation if a system of voluntary certification/ licensing is implemented. | Scheme should itself be equality impact assessed. Monitor the effect on diversity once introduced. |
| Recommendations | Positive impact | Negative impact | Action required |
| Recommendation 24 Providers of legal education (including private providers) should be required to publish diversity data for their professional or vocational courses, Qualifying Law Degrees and Graduate Diplomas in Law and their equivalents. |
Information about differentials in practice. Choice for entrants and triggers for remedial activity by providers and regulators. | Risk that data will not be collected consistently. | Development of a consistent approach to collecting and publishing diversity data needs to be agreed across all providers. |
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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:
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Information to entrants, consumers and employers about diversity activity, range of pathways to qualification and practice. Reduces risk of individuals embarking on (expensive) and inappropriate routes into practice. | Risk that information is not disseminated appropriately and existing inequalities remain entrenched. | Implementation of recommendations and monitoring of usage and access. |
| The Review Process | |||
| Recommendation 26 In the light of the regulatory objectives and the limited engagement by consumers and consumer organisations in the research phase of the LETR, it is recommended that the regulators ensure that appropriate consumer input and representation are integrated into the consultation and implementation activities planned for the next phase of the LETR. |
Testing of implementation of recommendations in the context of all equality groups and a diverse society. Specific attention can be paid to impacts on those of differing socio-economic groups. | Equality impact assessments will need to include a consumer dimension. | |
Recommendations not made
| Positive impact if recommended | Negative impact if recommended | |
| Cap numbers/providers for BPTC or LPC | Was suggested as a filter to prevent those unlikely to succeed on LPC or BPTC specifically, incurring the cost of those courses personally. | Inability of capacity to respond to the market. May entrench existing differentials in recruitment. Market for LPC is decreasing in any event and increased information about risks, opportunities and alternative routes (see recommendation 25) is likely to shrink it further. |
| Aptitude test/entrance examinations | Was suggested as a filter to prevent those unlikely to succeed on LPC or BPTC specifically, incurring the cost of those courses personally. | No clear evidence that all forms of aptitude test are neutral in terms of diversity. Additional cost of testing and arguably a developing industry in coaching. Increased information about risks, opportunities and alternative routes (see recommendation 25) and fair access to work experience (see recommendation 20) address aptitude and awareness issues. |
| Restrict LPC/BPTC/equivalent entry to those who have already obtained pupillage/training contract/supervised practice | Was suggested as a filter to prevent those unlikely to succeed on LPC or BPTC specifically, incurring the cost of those courses personally. | Prejudices those employers who cannot recruit this far in advance. Risk that any discrimination in recruitment by employers becomes entrenched in the system. Increased information about risks, opportunities and alternative routes (see recommendation 25) and fair access to work experience (see recommendation 20) address the issue at the point of entry. Increased alternative routes into the professions (see recommendations 21 and 22); broadening of opportunity for supervised practice (recommendation 15) and concurrent study (recommendation 14) address the risks of obtaining supervised practice opportunities. |
| Award a title on completion of the LPC | Suggested as a remedy for those who having completed the LPC were in professional limbo and unable to proceed to qualification as a solicitor, either because the market is saturated or because of characteristics/constraints.Regulated status and a title (Graduate member) is available in the CILEx structure to LPC graduates. | Title - whether 'solicitor (non-practising)' or any alternative title - does not guarantee employment or competence to practise independently and may simply create a different form of limbo. Risk of confusion to more vulnerable consumers if the title includes 'solicitor'. Increased alternative routes into the professions (see recommendations 21 and 22); broadening of opportunity for supervised practice (recommendation 15) and concurrent study (recommendation 14) promote opportunities to obtain full qualification rather than lower status non-practising title.. |
| Single national bar exam in place of existing qualification structures | Suggested as a remedy for those who having completed the LPC, were in professional limbo and unable to proceed to qualification as a solicitor, either because the market is saturated or because of characteristics/constraints | Differential impacts of form of assessment, cost of assessment and of additional coaching for it. Risk of lack of employment options once assessment completed. Recommendations about outcomes and standards (recommendations 1-5) address issues of consistency between routes. Increased alternative routes into the professions (see recommendations 21 and 22); broadening of opportunity for supervised practice (recommendation 15) and concurrent study (recommendation 14) promote opportunities to obtain full qualification. |