The Bar Standard Board’s training and education plans may provide an example of what the SRA loses by putting all its regulatory money on the regulation of competence through outcomes (and the markets that will swirl around such provision). In brute terms, the SRA professes only to regulate solicitor outcomes and leaves providers to decide how to do that. The means of control is the discipline of central assessment. Educationalists complain that you cannot assess everything and so something, something considerable perhaps is lost.
The BSB’s more measured, incremental reforms contain some welcome steps (including ethics assessment after practice-based experience). Also, whilst seeking to increase the flexibility what and how providers can provide authorised training, including the potential to split the BPTC and changes to pupillage, they nonetheless propose mandatory requirements on providers which include a very interesting section on diversity (para 46 onwards). BPTC and pupillage providers must demonstrate the following to be authorised:
46.1 Commitment to Equality and Diversity at organisational level, including a specific strategic commitment to –
- increasing diversity at the Bar;
- taking active steps to change the public perception of the Bar as an elitist profession, for example through public outreach events.
46.2. A clear strategy as to how the components(s) and/or pathway provided will be made accessible and how prospective barristers will be able to complete their education and training and achieve the best outcome that they are capable of, enabling them to demonstrate the Competences to at least the Threshold Standard.
46.3. A set of targeted policies and procedures flowing from that strategy relating to access, retention, attainment and progression, including –
- to encourage those who are currently under-represented at the Bar to consider it as a career for example by the provision of information, guidance and advice, outreach activities in schools and the wider community;
- policies promoting open and fair recruitment; aiming to address traditional biases including through flexible approaches to considering prior learning and experience; selection processes that seek to eliminate bias around aspects such as socio-economic background; taking into account external constraints on international applicants such as visas and immigration;
- how prospective barristers will be supported to enable them to engage with, reflect on and complete their Bar training (for example feedback mechanisms, support and mentoring);
- how the education and training enables prospective barristers to progress to and from pupillage or other forms of work-based learning and to the legal profession, the workplace or further study (for example a clear indication of what Competences they will have achieved during and on completion of each component, and what routes are then available to them).
46.4. Periodic evaluation of this strategic approach and the effectiveness of the policies and procedures using quantifiable measures and data analysis.
The SRA have surrendered the ability to introduce such requirements, hoping (I think forlornly) that information, markets and lower costs courses (if they materialise) will do the diversity work for them. It is a minimalistic, simple approach to regulating an issue which is both complicated and entrenched. I don’t think it will work. The BSB’s approach may not work either, and much will depend on how vigorously the mandatory requirements are interpreted and developed. At first blush, though, they stand a stronger chance of success, and if the BSB continues to focus on the issue and work out how to make progress with providers the chances of success increase. The SRA will face the question, after the big bang and (importantly) years of waiting to see if it works – then what? And in the meantime? A policy lever is surrendered by shifting regulation so dominated by central assessment.