Consistent and shared standards
4.106 Although the move to an outcomes-led approach offers a basis for some greater consistency and harmonisation, this is unlikely to be enough. Outcomes are simply descriptors. By themselves they say nothing about the standard against which such outcomes are measured or the level of proficiency required.
4.107 Standards are therefore a necessary adjunct to outcomes, and need to be designed in conjunction with the outcomes. Standards in this context perform two key functions (i) providing guidance and direction regarding inputs and learning processes that are considered essential if the outcomes are to be achieved consistently across a range of providers, and (ii) assuring or measuring the level of performance by standardising assessment.
4.108 Drawing on effective practice, standards in this first sense should address a range of areas or domains relevant to enhancing the consistency and quality of the learning experience and its outcomes: curriculum design and delivery; assessment strategy and processes; the management of teaching, learning and assessment; and the definition of each competence area and its learning outcomes. In addition to specifying broad criteria for each domain, it may be useful to highlight to providers the kind of evidence expected to demonstrate, or be indicative of, delivering the standard.
4.109 Standardisation of assessment is a more radical suggestion for LSET, though a long-established practice in medical education (see, eg, Newble et al, 1994).
4.110 A standard in this context is a statement about whether an examination performance is good enough for a specific purpose, eg, progression to a next level or stage of education and training, or signing-off as ‘day-one competent’. ‘Ultimately, all standards are policy decisions’ (George et al, 2006): consequently the critical first question is not so much what the standard is but how it is derived.
4.111 The issue of derivation goes to the heart of the consistency problem. Existing assessment strategies tend to focus on conformity as a proxy for consistency: a common pass mark, common outcomes, and (relatively) comparable assessment tasks. Despite the considerable effort and resources put into external examining, there is a developing weight of evidence suggesting that it does not adequately bridge the differences in institutional learning and assessment cultures (Newstead, 2002; Rust et al, 2005; Bone et al, 2009). Assessment standards often remain ‘difficult to articulate and require active participation over time to develop deep understanding’ (Price et al, 2008).
4.112 The proposed solution is to ensure that standards are constructed by the community to whom they apply. This recognises that assessment is largely dependent upon professional judgement and confidence in such judgement requires the establishment of appropriate forums for the development and sharing of standards and effective practices across the relevant academic and professional communities (cf Van Der Vleuten and Schuwirth, 2005).
4.113 This work should be progressed as a method for developing both outcomes and standards for professional training. As such it would support the development of both a socially robust system of standards, and encourage a sense of ownership of those standards within the LSET community.
4.114 Turning to the question of level of achievement, competencies or outcomes can, as the NOS demonstrate, be met by qualifications at different levels; it is the level that determines the depth of understanding, complexity of problems that can be solved, etc, and that marks out a competent performance. The setting of levels needs to be considered as part of the overall task of standard setting, but there is also value in ensuring that qualifications rest within established qualification frameworks. Discussion Paper 02/2012 proposed that ‘at least some part of the terminal qualification’ for the unsupervised practice of reserved activities should be set at a minimum of level 6 (NQF). This view was accepted by the majority of respondents and forms part of the recommendations of this report. It also requires some clarification.
4.115 First this statement does not tie the sector to an arbitrary level of achievement, but to one that seeks to recognise, against NQF descriptors, the need to ensure that unsupervised persons are capable of dealing with work of a reasonably high degree of complexity.
4.116 Secondly, it recognises the national and international importance of graduate-level qualifications/capabilities within the legal services sector, without requiring all unsupervised providers to be graduates.
4.117 Thirdly, it sets level 6 as the minimum, not the norm, otherwise there is a risk that this could be read as proposing to lower the level of achievement for some occupations. That is not the intention. It is acknowledged that the BPTC and LPC are set at or closer to level 7, as are the qualifications for notaries and registered trade mark attorneys.
4.118 The ‘level’ of learning in any period of supervised practice is also a potentially troublesome issue. Whether supervised practice is intended primarily as contextualisation or consolidation of knowledge and skills already developed in (or being developed in tandem with) the classroom, or whether it is intended to take learning to a higher level, or to demonstrate new competencies is not always clear. Realistically, it is probably a combination of these things. This is not to suggest that supervised practice outcomes must all be set at a ‘high’ level, nor necessarily benchmarked against the NQF. For some tasks, such as basic office skills, for example, it would be unrealistic to require that these are set at level 6 or 7, but the level (equivalency) should at least be considered in setting standards for supervised practice, and will certainly need to be addressed in the context of higher apprenticeships (Chapter 6).
4.119 Key issues to be considered by the regulators in relation to this recommendation include:
- the need to develop a method of working, whether through collaborative workshops, or using methods such as the Delphi technique, that ensures effective community engagement in the standard- and outcome-setting process;
- the need to ensure that outcomes are well-connected to risk as a means of avoiding over-specification (see LSCP response to Discussion Paper 02/2012);
- the provision of transparent mechanisms for accreditation of prior experience, and/or learning – AP(E)L – for entrants and transferees;
- the need to achieve agreement as regards threshold qualification levels for entry and/or transfer to a reserved or protected title.
4.120 In order to ensure a comparable set of competencies across the sector, it is further proposed that the frontline regulators commence work on articulating a common outcomes framework for the legal services sector as a whole. This is a substantial piece of work, complicated by the number and range of frontline regulators, but it would provide a significant foundation for assuring competence and delivering mobility across the sector as a whole.
4.121 The developing National Occupational Standards for the legal services sector (or their successors) could provide a useful comparator or foundation though, as noted above, articulation in that form may prove unwieldy; care needs to be taken that the system does not lead to overly bureaucratic distinctions that may restrict consumer choice. Either way, the outcomes would at a minimum require mapping against NOS to assure consistency.
 This function will be less relevant if there is only a single training provider, though the provision of standards still adds clarity and transparency in respect of the regulator’s expectations of the provider.
 Sources consulted in this process include General Medical Council (2009); the International Accounting Education Standard Board (IAESB) International Education Standards (various dates), Lilley and Harden (2003). See also the discussion in the Literature Review, Chapter 4, and sources cited there.
 Attempts to develop a similar approach across the university system have not so far taken off. It would be difficult, but not impossible, for a single discipline to take such an initiative forward in respect of degree-level education (and the UKCLE was engaged in such a project before its closure). An academic standard-setting project could form part of the Legal Education Laboratory, discussed in Chapter 6, potentially in conjunction with Centres of Legal Education in England and Wales and elsewhere.
 Qualifications for patent attorneys do not ascribe an NQF level but, as they are postgraduate in time, may also be at level 7.
 In a Delphi survey, proposals are evaluated by experts in a series of iterative rounds, in order to create a reasoned consensus. For a recent example of use of the Delphi technique to identify attributes of competence in medicine, see Lambe and Bristow (2010).
 The point is made by the Advocacy Training Council thus:
there is a substantial risk that the wrong kind of regulation will affect consumer choice. The QASA proposed regulation will require advocates to apply for a specific level assessment. Clients will be restricted to choosing advocates within a specific case level complimentary to the level of the advocate.
This of course also highlights the importance of risk, as one basis for limiting consumer choice may be because the risk of detriment is particularly high under existing market conditions.