CPD Consultation Response

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:

Human Rights:

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/

Supreme Court:

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

Housing:

The Nearly Legal Blog regularly publishes detailed commentary and analysis in the field of housing law (http://nearlylegal.co.uk/blog/)

General:

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.

4 thoughts on “CPD Consultation Response

  1. In my experience, several professions find it difficult to operate a CPD scheme without introducing an element of arbitrariness into the rules. It is very reassuring for a member of one of the financial professions to see that the Bar Standards Board appears to suffer from the same difficulty. I refer to the exclusion of article writing if the article is in the form of a blog.

    The oddity of the rule seems to be (at least) two-fold:

    First, allowing the time spent writing an article on a subject about which the writer is already knowledgeable would seem to do little to extend the writer’s professional development (although it may benefit the readers’, but that is a different matter entirely). Rationally, the writing time should be allowed for CPD only if the writer has had to learn something in the process. But, to do that, the writer must first read/research – which would presumably qualify as CPD under the rules for reading (not writing). So why include writing time at all?

    Second (if writing time is to be allowed), the written product should be of a suitable standard. Arguably, having an article published in physical form is indicative that it has been through greater editorial scrutiny than (own-site) blogs are typically subject to. But are the editors of all magazines reviewing submissions for legal quality? Some editors may be more concerned with the article’s contribution to circulation figures. In the case of articles written for the non-legal press, would the editors even know how to judge?

    As I said above, arbitrary …

    • As to the first point, isn’t the important thing the analysis applied to known material as much as the reading, which is itself a “reflective learning experience” (to adopt the jargon)?

      As to the second – agree entirely.

  2. I want to agree with your first point, but I don’t think I should. Once you allow “the analysis applied to known material” to be included as CPD, doesn’t that mean that every Opinion written for a client is included (and even the notes to self in preparation for a client conference). As if by magic, client work is now CPD!

    Which exposes the underlying arbitrariness of the whole thing. If CPD is intended to keep professionals up-to-date in their work for clients, we just need a rule that says: “If called upon to advise on something you are not sure about, look it up first”! The number of required CPD hours should be the number required to do all the necessary looking up.

    [Aside: I have been asked to speak in a debate on CPD in early 2012, so this exchange is very helpful to me. Now … can I book this time as CPD?]

    • Well yes – except that there is a specific prohibition on work done in the course of practice for a specific client to count as CPD. And I think in any event that there is a distinction because in writing an article one is applying analysis to case law, whereas in giving an opinion or preparing a case one is applying case law and analysis to the facts of a specific case.

      I agree there is an unavoidably arbitrary element to it. The trick I suppose is reducing that arbitrariness and finding a good balance.

      I don’t think that a simply requirement to ensure one looks up the information prior to advising is sufficient (but of course I understand that you are not actually suggesting that this should be so). Particularly for the bar, who are likely to be called into court at short notice to argue a case (as I was at 30 minutes notice yesterday), it is essential to have sufficiently broad and up to date knowledge and expertise in one’s area of practice to be able to competently manage a case even where circumstances do not allow for detailed preparation and research. One shouldn’t be expected to have the answer to every esoteric and extraordinary question at one’s fingertips but one ought to know the basics, the principles and most importantly the limits of one’s own expertise.

      And NO you can’t book this time as CPD! This is networking! 😉

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