Assessment, assessment, assessment

So the SRA have issued its Bonfire of the Regulations mission statement for the ongoing review of legal education and training. If I can test the reader’s patience with a stammering Blair impression it is outcomes, outcomes, outcomes focused with assessment, assessment, assessment at the heart of its strategy. The document is here.

The aim is to define assess able day one outcomes for qualification as a solicitor and to assess candidates on those outcomes. Research is underway, which includes client perspectives. Input measures (the need for particular processes of training) are eschewed. The working assumption, then, must be that you do not need to have a law degree, or a conversion course, or an LPC pass to qualify as a solicitor. The document does not spell this out, but it must be the implication if there is truly to be the radical shift towards outcome based accreditation the report presages. Interestingly, there is an apparent, possibly accidental assumption that there will be a two year training contract. I am going to assume that is a mistake.

On its face then, this document presages the end of the Qualifying Law Degree, although the Bar may keep it alive assuming the SRA succeeds in bypassing it. The end of the legal Practice Course and the end of the Training Contract unless, and here is our first rub, students and/or employers see these processes as necessary precursors to taking the assessments of professional competence necessary to qualify.

The extent to which the system is likely to change is likely to be significantly predicted by the content of day one outcomes. Day one outcomes which specified significant knowledge in each of the foundation subjects would lead to less change than a more liberal definition of common expectations on solicitor qualifiers. Here the report emphasises the narrowness of common denominators across the profession. They focus down on, “common attributes relating to matters such as ethics, respect for and understanding of the rule of law and the independence of lawyers and legal reasoning that are a necessary requirement of qualified solicitors regardless of their area of specialisation.

To be sure, we may not see the complete end of process or input measures. The SRA are probably anticipating a bloody fight on the extent to which it would be unwise to rely solely on untested outcome measures, and so speak of, “significant flexibility as to how the knowledge, skills and attributes are actually achieved.” But the potential for these reforms to release law degrees from the QLD framework (but also weaken law schools formal claims to be necessary for qualification) and to seriously weaken the need for, size and shape of the LPC is dramatic. No wonder Nigel Savage has just issued a warning against the dilution of standards. Natural professional and academic conservatism will meet market forces and innovation head on the less prescriptive any day one outcomes are.

There are other elements to the vision statement, an outcome focused approach to CPD, better information for students on progression and value (the SRA rather unwisely in my view want to pass that particular buck), and they keep alive the LSCPs hope of re-accreditation in areas of high risk. There are the usual claims that flexibility will improve diversity. The important questions: how much and will they have significant impact are unanswered. There is the usual nod toward students needing to understand business. I make here the important but usually ignored point that there is no requirement that lawyers understand individuals. It sounds flippant, but it is not.

The devil of these proposals is, of course, very much in the detail. Conceptually they make much sense. However, a shift to outcome assessment is a massive shift culturally and practically. Evidence on assessment in legal competence is not strong. A pilot here and there does not a robust system make. QASA in particular is an indication of what a minefield the issue can be. Assessment must be both fair, proportionate and robust. This does not come cheap or easy and there is a learning curve of significant proportions. Equally, excellence should not be the enemy of the good. A more outcome focused, more assessment based, more flexible system is a direction travel with much to commend it.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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