Consistency and quality assurance

7.29     Concerns about consistency of standards were raised primarily with respect to the solicitors’ profession. Absence of consistency is difficult to address, not least because there is uncertainty about the benchmarks to be achieved. The move to a more robust system of outcomes and standards is therefore a first and essential step in demonstrating consistency.

7.30     Regulatory focus on quality assurance of LSET has tended to be on classroom-based education and training, with little attention paid to assuring the quality of workplace learning. Considerable resource is committed by the higher education sector into quality assuring degrees, more so than in, eg, the USA. There is no international quality benchmark, though continuing international demand for UK legal qualifications can be seen as a plausible proxy for quality, and law courses continue to recruit strongly in the global market. Insofar as differences in standards exist, these may reflect a variety of causes, including some legitimate institutional differences in approach to matters such as assessment.

7.31     Imposing additional quality assurance requirements on the universities would not seem to be a proportionate response to the problem. The QLD outcomes are very broadly stated through a combination of the QAA benchmark and the JASB Joint Statement. The relationship between these two statements requires some clarification and simplification. A moderate increase in prescription of outcomes would be more proportionate than any greater intervention by regulators.

Assessing the outcomes and means of assessment

7.32     Assessment demonstrates that outcomes have been met, and offers some indication of quality and consistency. There are a number of areas where LSET would benefit from more robust and more creative approaches to assessment:

• First, legal values should be assessed in some combination of foundation courses at the academic stage, or their equivalent. If adopted, the ‘professionalism’ outcomes similarly should provide a pervasive context within which professional knowledge and skills are developed rather than addressed as a discrete subject of assessment.

• Secondly and exceptionally, given its crucial importance across academic and professional education and training, there should be a discrete terminal assessment of legal research, writing and critical thinking skills at a minimum of level 5 of the academic stage. Academic stage 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.

• Thirdly, training and assessment providers should ensure that rigorous and realistic methods of assessing professional skills are adopted, particularly in the context of the range of communication skills (interviewing/conference skills, drafting and advocacy).

• Fourthly, consideration should also be given to developing and evaluating[1] reflection through a portfolio or personal development plan within professional training and as a preparation for CPD. If resources permit, the portfolio could form part of a more substantial portfolio/development planning tool that supports and reflects practitioners’ training through their career.

Supervision and teaching in the workplace; monitoring of supervised practice

7.33     Requirements for periods of supervised practice were described in Chapter 2. This showed the considerable variety across the sector in supervised practice requirements. Respondents who commented on supervised practice were almost universally of the view that some element of supervised workplace training must be retained; however, consistency of experience and quality of supervision remain significant issues for some. A number of respondents thought that some form of quality control over workplace supervision was desirable, and not just through a CPD requirement for training. It is important that any such requirement is targeted and proportionate, so that enhancing the quality of supervision does not increase the regulatory burden on employers to the extent that the number of viable opportunities for supervised practice is reduced. The experience of a number of law firms who provide in-house training, and of the Inns of Court in developing training for those supervising pupillages, indicates that effective training can be introduced without it becoming too onerous.

7.34     Key issues identified included lack of clarity regarding the educational purpose of workplace learning and its relationship with classroom learning; a failure to specify outcomes for workplace learning, and proper procedures for signing-off achievement of those outcomes; over-prescription of training environments, yet a lack of effective audit procedures. Consequently it is proposed that supervisors or their organisations (as appropriate) must be able to demonstrate that proper systems for the supervision of trainees during periods of supervised practice are in place, systems which ensure an appropriate balance between work and training. Subject to such safeguards there is scope to revisit regulatory constraints on who can supervise; and opportunities to provide supervised practice outside approved training organisations (in professions that approve training organisations), and to establish audit procedures that are not too onerous but which include the power to access or call for records and make random visits if required. Where regulation of training is entity-based, the entity should be able to show that it has an appropriate training and supervision strategy for its regulated workforce, not confined to periods of supervised practice.

7.35     Specifying outcomes by itself will not necessarily enhance or guarantee the quality of supervised practice unless outcomes are sufficiently specific to be measurable and are referenced and assessed. Where this is the case there is a stronger likelihood that outcomes will have an impact on quality. Provided that a robust outcomes approach is developed, approved regulators should consider moving to a fully or primarily outcomes-based assessment of periods of supervised practice, such that qualification – or in the case of barristers and notaries, independent licensure – is permitted on achievement of all the necessary outcomes without the current emphasis on time served. Though there may be an argument for retaining, at least as an interim measure, a normal minimum period of service under training, competence to practise should ultimately be determined by satisfaction of the necessary outcomes to a robust standard.

Specialist accreditation

7.36     Further, market-driven moves towards specialisation may suggest a trend in the future towards more modularised qualifications and accreditations. It is therefore recommended that suitably robust specialist accreditation be encouraged and recognised as a substantial part of any revised CPD framework.

7.37     The majority of specialist accreditation schemes are voluntary, and thus distinct from any system of activity-based authorisation. Under the right conditions, accreditation can achieve positive outcomes for consumers and professionals alike, but it can also send out misleading signals to the marketplace and appear to offer assurances of quality where the evidence is limited. There are risks, particularly where schemes are owned by the group they are assessing, that tensions may arise between raising public awareness, marketing and real quality assurance. Provided specialist accreditation schemes can demonstrate robust membership criteria, and appropriate assessment/audit and review processes, they should be supported by regulation, eg, in terms of evaluating the risks and hence level of oversight applied to a regulated person or entity.

CPD and continuing learning

7.38     The aims of consistency and quality assurance should be reflected more clearly at the CPD stage as well. CPD, by definition will be more personalised and needs-led. The focus at the CPD stage should be on quality assurance rather than content. Consequently the report concludes:

• schemes need not, but may prescribe minimum hours across the board;
• sufficient identifiable hours/activities should be undertaken in the required areas (ethics and professionalism, and, as appropriate, equality and diversity, management and supervision). ‘Sufficient’ in these contexts means appropriate at that time to the needs of the learner, his/her clients, and (where relevant) the employing organisation;
• CPD schemes should permit practitioners to use informal learning as evidence, provided that evidence of reflection and learning from the activity is demonstrated;
• a limit may be set on the amount or proportion of non-verifiable activity that counts;
• all completed CPD activity for the cycle should be recorded, not just the activity required to comply with any minimum requirement;
• regulators should support their regulated communities by providing initial training, guidance and tools to assist in maximising the value of the required CPD activity;
• provision should be made for random audit of annual CPD plans, and for effective trigger powers to review CPD across an entity where random audit highlights reasonable cause to investigate.