7.80 In conclusion, the report summarises the main recommendations derived from the LETR research phase. These have all been identified in the body of the report and are included here with limited commentary. Many are stated at a level of generality, as this phase of the research focuses on LSET as a whole rather than on any one particular scheme of professional education and training.
7.81 The Literature Review has identified (para 1.30) the impact of structural factors (including resource constraints, information asymmetries, fragmentation of legal work and proliferation of regulators and regulations) making it difficult to design and sustain a coherent network of pathways into and between the legal professions. It also identified the need for enhanced, genuine and continuing collaboration between education and training providers, practitioners and regulators, and the need therefore to consider how such collaboration may be designed into regulatory tools and structures for the future, together with input from consumers. These priorities are reflected in the recommendations which follow.
7.82 The full recommendations are listed below. They are organised into four groups: outcomes and standards, content, structures, and review process. There is no particular significance to the order in which the recommendations are presented, and no inferences are intended with regard to the priority of any item.
Outcomes and standards
7.83 Adjustments to content and structures of LSET will not satisfy the aims of the Review without attention being paid to what is to be learned and to what standard, defined by reference to competent practice. Consequently attention must be paid to outcomes and standards of LSET.
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.
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.
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.
7.84 These recommendations flow from the work on competencies, outcomes and standards set out primarily in Chapter 4. The move to outcomes has been explored extensively in the report, but in essence this is central to the future development of the LSET system here envisaged. Outcomes are essential for any form of standard-setting, for equitable access to the profession, and they are amenable to flexible, innovative design and implementation (eg, QLTS). They are also key to the delivery of regulation through design.
7.85 The methodology prescribed in this recommendation emphasises the need to define day one outcomes as a starting point and to work back to the beginning of training.
7.86 Robust systems for standardising the assessment of outcomes should be developed in line with the guidance contained in Chapter 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.
7.87 If the public is entitled to expect a single level of competence across at least the range of reserved activities and common core skills, there will need to be some coordination in setting threshold levels of competence. This does not mean that different pathways or qualifications must adopt common learning processes, or that a qualification cannot be set above the threshold, but it does mean that different approaches must have at least equivalent effect. As noted above, it is proposed that the threshold level of competence for a terminal qualification giving authorised practice rights should be set at not less than NQF level 6.
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.
7.88 This will be a substantial project to complete, but by creating, in effect, a national framework for the sector, this would simplify transfer and partial authorisation decisions and facilitate the development of specialist activity-based qualifications or accreditations. It could also provide a single framework to support progression from paralegal to authorised practitioner roles.
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.
7.89 The treatment of professional conduct, ethics, and ‘professionalism’ is variable across the sector. In addition to ensuring that professional conduct matters are properly addressed, either through a discrete course or pervasively through professional training, regulators are encouraged to consider developing a broad approach to this subject, rather than a limited focus on conduct rules or principles. For the avoidance of doubt this report is not recommending that professional conduct should become a Foundation of Legal Knowledge or should otherwise be required within the LLB or GDL curriculum.
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.
7.90 The basis for this recommendation has been substantially trailed through the evidence and discussion in this report. It is recognised that the extent and depth of focus on these issues will vary significantly between education and training schemes, and there is no expectation that these different elements are given equal weight. At the core of this recommendation, however, is the importance of developing an understanding and appreciation of legal values, not least as an underpinning to the regulatory objectives of the LSA 2007, in all regulated persons in the legal services sector.
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.
7.91 Reduction in public funding and changes to litigation funding described in Chapter 3 are likely to change the context in which advocacy skills are exercised. These should be recognised in the appropriate stages of LSET.
Learning outcomes should be developed for post-qualification continuing learning in the specific areas of:
- Professional conduct and governance.
- Management skills (at the appropriate points in the practitioner’s career. This may also be targeted to high risk sectors, such as sole practice).
- Equality and diversity (not necessarily as a cyclical obligation).
7.92 Although it was not ultimately considered necessary or proportionate to create a continuing obligation to address client relationship skills across the piece, the importance of these skills still needs to be stressed. Within any system of entity regulation, it is recommended that close attention is paid to the entity’s ability to link client feedback and complaints data to individual performance and training needs. It follows that entities should be encouraged to be far more proactive than the majority currently are in collecting and using client feedback to enhance performance.
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.
7.93 The extent to which the Foundation subjects should change will be determined by work on the revised outcomes. Though it has been recognised throughout this report that the range of evidence points to the existing Foundation subjects as a reasonable proxy for what is required, it is not the function of this report to pre-empt that process. There may be a case for any revised Joint Statement to recommend the allocation of discrete credit/hours to skills development, particularly in respect of legal research and writing. Though foundation skills courses or components of courses are increasingly common in law schools, there remains a risk that skills are undervalued in the curriculum.
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.
7.94 This assessment requirement is proposed as a necessary and proportionate measure to address the growing concerns that these pervasive skills have not been sufficiently developed. This would also act as a limited proxy for skills that might otherwise be tested via an aptitude test. It is envisaged that such an activity could be integrated into the normal assessment of a substantive module, or could be developed as a free-standing project or writing/research skills task.
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.
7.95 The quality of education and training in respect of advocacy and wills has been widely mentioned. These are problematic as both are reserved areas of practice, but not relevant to the day-to-day work of a majority of trainees. The quality of both must be improved. A rational approach would be to take both out of the LPC and create them as separate ‘endorsements’ on the practising certificate which could be obtained following specialist training and experience during the training contract, or subsequently as CPD. This would have the benefit of freeing up space on the LPC for other activities (noting concerns about the relative lack of depth).
7.96 It is recognised that this would be an extremely controversial change, so an alternative but less effective solution would be to move advocacy into the training contract as part of a strengthened initial professional development requirement. This still means however that on qualification many trainees could become licensed in advocacy based on a relatively short, potentially simulated, experience. If this approach is adopted for advocacy, a strengthened wills component could be included in the LPC.
7.97 Variations in the quality of teaching and in the form of the assessment of drafting skills also result in uneven preparation for practice. A better understanding across the board of effective practice, and greater consistency in the development of realistic assessments of this skill would also enhance standards.
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.
7.98 The introduction of ReDOC as a subject of study appropriately reflected changes in the provision of legal services. In line with discussion in Chapter 4, robust assessment with practice validity, suggests that it should be strengthened in terms of enabling BPTC graduates to develop the skills to perform as effective advocates in an ADR context.
Periods of supervised practice
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.
7.99 This recommendation follows from the preference for a mixed economy. The LETR research data demonstrated a strong interest in enabling further experimentation and more flexible pathways, but insufficient confidence in the advantages of a more integrated approach to make it the norm. It was also recognised that blending would create additional costs for smaller entities, and possibly drive them out of the training market. Where integration takes place, work towards consistency between classroom and practice-based activity should be undertaken.
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.
7.100 The aim of this recommendation is to permit greater flexibility with respect to periods of supervised practice, particularly, but not exclusively, for solicitors and barristers. This will assist in reducing the bottleneck around training in those professions, and also help to ensure that employers and training organisations have the ability to train individuals in a way that suits their needs and those of their clients. The logic of an outcomes approach suggests that an individual should be ‘signed off’ at the point they are judged competent, rather than on the basis of time served. Equally, there are risks with the removal of time periods, and with the specification of minima, which may rapidly become a new standard. One approach may be to address these risks through appropriate guidance on review against outcomes, allowing for reduction in the normal period of training, rather than a specified minimum as such. Conversely, proper evaluation against outcomes may (and should) lead to an extension of the training period, or termination in appropriate circumstances.
7.101 Provided training is ultimately signed-off by an appropriate authorised person, it is recommended that unnecessary constraints on the range of individuals undertaking actual supervision are removed. Supervision should be capable of being offered by any person who can demonstrate competence in the requisite activities for that phase of a supervisee’s training and the necessary skills and/or training to act as a supervisor.
CPD and continuing learning
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.
7.102 This is important but does not need to be unduly burdensome. Training should not just address the regulatory dimension, but support supervisors in developing effective supervisory and mentoring skills. Such training should count towards CPD obligations.
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.
7.103 Regulators should support their regulated communities by providing initial training, guidance and tools to assist in maximising the value of the required CPD activity.
7.104 It is anticipated that one function of this approach will be to reduce reliance on inappropriate and variable quality course-based CPD. Practitioners should be encouraged to demonstrate an appreciation of the role played by informal learning in their development, and to make the most of informal learning opportunities by converting them into structured learning activities. CPD schemes should not, however, enable practitioners substantially to satisfy their CPD obligations by reference to unstructured informal learning.
7.105 It is suggested that all completed CPD activity for the cycle should be recorded, not just the activity required to comply with any minimum requirement. Where this is feasible in resource terms, it is recommended that an online system is created by the regulator for the submission of CPD plans and logs.
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.
7.106 Supervision of individual activity and record-keeping should be designed in the majority of regulatory contexts as an entity function. ‘Audit’, it is suggested should also be devised primarily as a co-regulatory activity between regulator and entity, though backed up by more formal investigation powers if required. The use of facilitative compliance or practice reviews, along the lines adopted in New South Wales should be considered as a tool for entity regulation. Whilst these would support other regulatory functions as well, they could support entities in identifying and addressing training needs. The reference to learning outcomes in recommendation 9 does not and should not preclude entities from identifying their own additional outcomes for a CPD scheme.
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.
7.107 A number of responses highlighted the added complexity and cost created for both CPD providers and participants by the need to obtain approval or course accreditation from different regulators. Greater co-ordination would reduce this cost and increase opportunities for practitioners to select from a wider range of options and providers; this may be particularly helpful for smaller professions and niche practices, where the range of CPD may be limited.
Apprentices, paralegals and work experience
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.
7.108 A number of issues around fair access were discussed in Chapter 6, including the significance of prior legal work experience in recruitment decisions. This raises important equality and diversity issues, including inequality of opportunity (eg, for those with family or other caring responsibilities, or for those for whom there may be significant pressure to undertake paid work during vacations) and inequality of access. There is a need to mediate the impact of social capital, personal connections, socio-economic origin, and attendance at a pre-1992 university in accessing work experience. The division between formal and informal work experience must be reduced, and proper, transparent and fair processes for selection should be employed in respect of all individual work experience opportunities.
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.
7.109 This recommendation acknowledges and builds on the work already done in developing the higher apprenticeship at level 4. It recognises that, at present, this proposal is geared towards preparation for entry to the solicitors’ profession. This should not preclude consideration of developments in other parts of the sector, particularly given that apprenticeship developments are designed to be industry-led. It is also recognised that it might not be feasible for some professions (eg, the difficulty of replicating the patent attorney’s breadth of prior scientific learning).
7.110 The apprenticeship potentially adds value as a way of increasing diversity within the solicitors’ profession, and in creating competition between training pathways. However, concerns remain that (i) firms’ recruitment policies will not necessarily deliver the level of diversity possible for an apprenticeship route and (ii) the knowledge developed at the higher levels is insufficiently broad and robust to avoid the apprenticeship becoming a ‘second class’ route into the profession. The potential for apprenticeships to support diversity and add value to other professional pathways could also be explored.
7.111 It is recommended that the diversity data required of regulated entities by the LSB include an apprenticeship category to enable disaggregation and tracking of the diversity of apprentices across the sector.
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.
7.112 The quality of supervision and training of paralegals, and the lack of progression or professional recognition for paralegal work are highlighted by the research data. This recommendation seeks to respond to those needs.
7.113 The range of NOS covering advice workers and apprenticeship standards could provide a useful foundation for a common framework of outcomes and standards. Such a framework could permit passporting into the scheme of those with appropriate qualifications, or individual accreditation directly against the standard.
7.114 In the context of the significant and substantial changes to both the private and public funding of legal services, there may be a role for independent paralegals in delivering well-priced quality services outside the currently regulated market. Further work should be undertaken to explore the potential of licensed paralegal schemes, for example, on the lines offered in Ontario. This may also be an area where, within LSA 2007 regulation, CILEx members with independent practice rights could also make an important contribution.
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.
7.115 There is a considerable diversity of specific paralegal qualifications and entry routes in England and Wales, and this has been identified as a source of confusion and some uncertainty. There is also some evidence of a developing junior paralegal ‘technician’ role. Arguments both for and against voluntary accreditation of paralegals within the regulated sector are explored in Chapter 6. It is not clear that the additional burden of registration is proportionate to the risks represented by paralegals within that sector, but it is argued that voluntary accreditation against a quality mark, akin to the Scottish scheme could provide a mechanism for cutting across that complexity. In the light of evidence of a growing unregulated sector, the extension of such a voluntary quality scheme to the unregulated sector may bring benefits to service providers and consumers, but this requires further research.
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.
7.116 This should include data on examination sittings and performance for those professions which do not regulate course providers. Where at all possible, data should distinguish between home and international students/trainees.
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:
- Data archive (including diversity monitoring and evaluation of diversity initiatives);
- Advice shop (careers information);
- Legal Education Laboratory (supporting collaborative research and development);
- Clearing house (advertising work experience; advising on transfer regulations and reviewing disputed transfer decisions).
7.117 As noted earlier in this chapter, and in Chapter 6, this recommendation is seen as central to developing the information base that is critical to enhancing access, and also to developing new knowledge and tools that will support LSET in maintaining its fitness for the future. If there is in principle support for this development, a specification and full costings would need to be devised. The virtual nature of the hub is intended to keep costs down, and, as a collaborative venture between regulators, the professions and the universities, it is anticipated that it would draw heavily on existing work and information required for other purposes, so that information costs should be relatively low, with resourcing required primarily for coordination, content, design and management functions.
The review process
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.
7.118 The report stops short of making specific recommendations, particularly directed to the LSB in respect of the unregulated sector. Although some preliminary research was undertaken, this served largely to highlight the paucity of existing research and information about that sector. With current changes to public funding, etc, it is likely that the unregulated sector will become more not less important subsequently, and further research should be undertaken to enable a more detailed understanding of the role and impact of unregulated service providers on the market.