The Bar Standards Board Consultation on reform to CPD for the Bar closes on Monday. I have posted about the proposals at some length before and I don't propose to repeat all the contents of my last post. The original post can be read here.
I am going to take @adamwagner1's approach and publish my consultation in blog form, and refer the BSB to that. This then is my consultation response. I will deal with each of the Consultation Questions in turn.
1 Do you think that the fundamental approach to CPD requirements should continue to be based on a system defined by the number of hours of CPD undertaken annually? Yes.
2 Do you agree with the proposed new approach for CPD that will, as a single but five-fold strategy (1) increase the range of approved CPD activities; (2) increase the number of CPD hours per annum; (3) raise the standard of record-keeping; (4) simplify the system of reporting, and (5) simplify enforcement of the CPD Regulations? I agree with the five strategic aims. I disagree with some of the specific proposals that are intended to achieve those aims.
3 Do you agree that with the more flexible definition of CPD (Report paragraph 117) the required number of hours should be increased from 12 to 24 hours per annum? I agree that there should be an increase on the basis that the categories of activity which can be claimed as CPD are genuinely broadened. The suggested doubling of hours seems at the top end of what is likely to be appropriate.
4 Do you think that (if more hours are required) acceptable activities should include private study, relevant professional and personal skills, and a wider range of training activities than is currently accepted? Emphatically yes.
5 Do you agree that there should be no compulsory CPD topics for established practitioners, but a balance of activities must be undertaken? I agree that there should be no compulsory CPD topics for established practitioners, and furthermore I think that the question of the appropriate balance of activities is something that can only be assessed by individual practitioners, who are unlikely to undertake irrelevant CPD activities to a sufficient degree that it is likely to undermine the purposes of a CPD system which is otherwise robust. I do not think the issue of balance is capable of proportionate and effective regulation. I do think that for some areas of practice new practitioners should be required to undertake specific training if they have not had experience of that area as a pupil (such as my own area of practice family law where the practice and procedure in family proceeding is very different from in other fields and is not taught anywhere other than through observation in pupillage).
6 Do you consider that the current system of applying for extensions of time should be continued? I agree that there should be a system of application for extensions of time. A degree of flexibility would be welcome particularly for returning practitioners who have been on maternity or a period of illness. On my return from maternity leave I found it very difficult to make up my CPD hours as I was under pressure to earn money by attending court daily. It had not been appropriate to suspend my practising certificate in case I was required for urgent telephone advice on ongoing matters during my absence, and was therefore required to complete a full year's CPD which I eventually had to complete online and with no .
7 Do you agree that there should be no waivers of CPD requirements for barristers who wish to retain their practising certificates? See my answer to 6 above. Whilst I acknowledge the importance of practitioners ensuring their continuing fitness to practice, it seems to me that where a barrister has been on maternity leave (or illness) for a short period of less than 6 months and she returns to work in the second half of a calendar year she ought to be able to apply for a modest reduction in the number of hours to be completed in the year of her return to work, or at least some rollover of the requirement to the next year. I think it unlikely that such a proposal would place clients at any material risk of their barrister being out of date, but it would ease return to practise.
8 Has the system of accreditation of CPD providers and courses by the BSB outlived its usefulness, indicating that it should be replaced by the proposed system of barristers recording their own ‘verifiable’ and ‘non- verifiable’ activities? I'm attracted by the idea of verifiable and non-verifiable activities. I think it is onerous to require barristers to retain documentary evidence of the activities for three years. I would expect any query about adequate completion of CPD to be raised within a couple of months of submission of my CPD record, or at any rate by the conclusion of the calendar year in which the records are submitted.
I have made some further comments below about activities which are not allowable.
9 Would a new system based on a barrister’s Declaration on application for the renewal of the practising certificate, together with retention by the barrister of a Portfolio recording CPD activities (for monitoring and sampling purposes) be an effective means of ensuring CPD compliance? Yes, although I am dubious as to whether the 5cm x 2cm box prescribed for "reflection" on the learning value of each activity is in fact likely to stimulate reflective learning or cure a tick box mentality. Similarly, I do not think that the overall reflection and self evaluation summary proposed will serve any purpose other than to irritate practitioners and potentially to discourage them from doing anything more than going through the motions.
I agree that the current system leads in many cases to a tick box approach, where practitioners can focus more on getting the requisite number of points than actually learning anything, but I do not think that any deep change of culture will be effected in this way. I think it is more likely to be achieved by a proper opening up of the categories of activity which can be counted towards the CPD total, allowing practitioners to form their own judgments based on their own unique practice and training needs. Those who do approach CPD as a learning opportunity will reflect on their learning needs and outcomes regardless of whether or not there is a column in which they are asked to sum up that reflective process or not. Those who do not adopt that approach will simply write a meaningless one liner in the relevant box, grumble and carry on.
10 Should the New Practitioners’ Programme be retained substantially in its present form but based on an annual return as opposed to over a three year period? Yes.
11 Should the Forensic Accounting Course be retained substantially in its present form (but with some improvements to content and delivery)? Yes.
12 Do you have any other comments on any of the recommendations or the proposed new system as detailed in Chapter XVI of the Report or in the draft Handbook? Yes. Please see my previous blog post and the following comments (http://pinktape.co.uk/2011/06/developments-in-continuing-professional-development/).
Mediation training should count as a verifiable activity. I am unclear whether the authors of the report propose that such training should be disallowed. It seems to me that it is training in a skill which, like advocacy, is essential to day to day practice, whether or not one goes on to develop a business as a mediator per se.
I do not understand the logic behind the inclusion of "publishing a book or article" in the list of verifiable activities and the inclusion of "reading by way of private study law reports, statutes, legal journals or similar materials..." in the list of non verifiable hours, whilst the running of a blog or legal commentary is specifically stated as not allowable (2.6 draft handbook). It is unclear whether the reading of a legal commentary blog would fall within "similar materials" but I do not see why it should not. This should be clarified.
I agree that networking activities per se should not count as CPD. I do not think anybody would claim them. But many activities that are currently legitimate CPD activity such as the presenting of lectures involve some networking activity. Similarly, the operation of a website purely advertising legal services ought not to attract CPD, but this does not mean that the running of a legal commentary blog, or at least the writing of specific posts of substance ought to be excluded.
There are a number of lawyers who offer detailed and highly skilled commentary and analysis of specific cases and legal issues. That they publish this high quality material in an electronic form and disseminate it to the public at large does not detract from it's educational value, either to reader or writer.
Some examples of high quality and highly educative legal writing which is published in an online format are listed below, and many practitioners consider these blogs essential regular reading in order to maintain the currency of their expertise:
The UK Human Rights Blog regularly publishes detailed analyses of specific cases or particular issues arising. One Recent example is here: http://ukhumanrightsblog.com/2011/10/14/another-cuts-challenge-fails-changes-to-housing-benefit-scheme-not-unlawful/
The UK Supreme Court Blog regularly publishes detailed analyses of cases emerging from the Supreme Court. One recent example is here, by David Hart QC: http://ukscblog.com/insurers’-human-right-not-to-pay-for-putting-asbestos-in-employees’-lungs
The Nearly Legal Blog regularly publishes detailed commentary and analysis in the field of housing law (http://nearlylegal.co.uk/blog/)
Other examples of legal commentary can be found listed on the Guardian Legal Network (http://www.guardian.co.uk/law/series/guardian-legal-network)
Any person who wishes to claim CPD points for reading or writing material which is available exclusively online ought to retain a printed record of the material they wish to claim for as verification. If that is done I can see no valid objection to the inclusion of online material as a non-verifiable activity.
The report raises no argument as to any qualitative difference in material available electronically over material available in print and there has never been any attempt to audit the quality of legal writing that is the subject of CPD. If the BSB wishes to encourage truly reflective learning then the writing and reading of serious legal commentary, regardless of medium, ought to be encouraged not sniffed at.
I am sending this consultation response to the BSB in the expectation that the weight attached to it will not be affected by the medium of its delivery.