Ongoing competence: Call for evidence


This page supports the call for evidence, a key milestone in our ongoing competence project to review how regulators ensure that the legal professionals they regulate remain competent throughout their careers.

The call for evidence is an important opportunity to share our findings so far and gather relevant information about existing competence assurance practices in the legal services and other sectors.

The call for evidence closed on 26 June 2020. We are now analysing the information we have received and will provide a report on our findings later in 2020-21. You can contact us or continue to share any information you have via email.

Included in the information below are some of the resources that we considered when preparing the call for evidence. We have provided links so that you can consider them further as needed and to help you better understand our emerging findings.

This information will inform our thinking together with information we receive during the call for evidence. Through our analysis, we may find that there are gaps in the evidence base. If we consider these gaps to be significant then we will consider commissioning new primary research.

We have grouped the resources according to the themes in the call for evidence and have ordered them by date, with the most recent appearing first (unless the link is to content that is undated):

Defining competence and competence assurance

Consumer expectations of competence

Competence in the legal services sector

Competence in other sectors

We intend to update this page with information received from stakeholders, unless a respondent has specifically asked that part of their evidence, or its entirety, should be kept confidential. In that case, we may decide to record the identity of the respondent and the fact that they have submitted confidential information.

As a public authority, the LSB may be required to disclose information on request under the Freedom of Information Act 2000. You can find out more about our obligations on our Freedom of Information page. You can also find out about how we handle personal data by visiting our Privacy notice page.

We include a glossary of the terms that we use.

Defining competence and competence assurance


This section of the call for evidence considers what we mean when we say a legal professional is competent and it considers different definitions of competence that are currently used. The section also explores the different methods available for assuring competence, including those used in the legal services and other professional services sectors.

Resource (most recent first)

Relevance to the call for evidence


Resource (most recent first):

Regulatory body CPD schemes:

Relevance to the call for evidence:

Each regulatory body that we oversee has a framework for CPD, including specific requirements for their respective regulated legal professionals. Some of these frameworks are outcomes focused and dependent on legal professionals identifying their own learning and development needs, while others have particular requirements for a minimum number of hours to be completed and/or certain types of CPD activities to be undertaken.


Resource (most recent first):

ICAEW, Code of Ethics (2020).

Relevance to the call for evidence:

ICAEW sets out the expected competencies of regulated legal professionals in its Code of Ethics. The Code states that Professional Competence and Due Care is one of five fundamental principles, which requires regulated professionals to:

(a) attain and maintain professional knowledge and skill at the level required to ensure that a client or employing organisation receives competent professional service, based on current technical and professional standards and relevant legislation; and
(b) act diligently and in accordance with applicable technical and professional
standards.


Relevance to the call for evidence:

The literature review explores different research on the effectiveness of CPD. The review finds that the best models for CPD have quality assurance practices embedded in them. The review also finds that qualitative aspects of CPD (such as peer feedback, reflection and personal development planning) could be used to identify registrants (dental professionals) who require greater input from peer support, mentoring and workshops.


Resource (most recent first):

IPReg, Code of Conduct (2019). 

Relevance to the call for evidence:

IPReg sets out the expected competencies of regulated legal professionals in its Code of Conduct. The Code states that regulated persons shall carry out their professional work with due skill, care and diligence
and with proper regard for the technical standards expected of them. A regulated person should only undertake work within his expertise or competence.


Resource (most recent first):

CLSB, Code of Conduct Costs Lawyers (2018).

Relevance to the call for evidence:

CLSB sets out the expected competencies of regulated legal professionals in its Code of Conduct. In the Code, one of the seven principles of regulation is to provide a good quality of work and service to each client. 


Resource (most recent first):

ACCA, Code of Ethics and Conduct (2018).

Relevance to the call for evidence:

ACCA sets out the expected competencies of regulated legal professionals in its Code of Ethics and Conduct. The Code has five fundamental principles, including a continuing duty for members to maintain professional knowledge and skill at a level required to ensure that clients or employers receive competent professional service.


Resource (most recent first):

CLC, Code of Conduct (2017).

Relevance to the call for evidence:

CLC sets out the expected competencies of regulated legal professionals in its Code of Conduct. The Code has six overriding principles, one of which is to maintain high standards of work.


Resource (most recent first):

BSB, The Professional Statement (2016).

Relevance to the call for evidence:

BSB sets out the expected competencies of regulated legal professionals in its Professional Statement. This statement includes the essential knowledge, skills and attributes that they [barristers] should expect of themselves and their peers. 


Relevance to the call for evidence:

SRA sets out the expected competencies of regulated legal professionals in its Statement of solicitor competence. The SRA states that the requirements and expectations [of competence] change depending on job role and context, and that, an individual may work ‘competently’ at many different levels, either at different stages of their career, or indeed from one day to the next depending on the nature of their work.

Solicitors are expected to use the Statement to help them identify learning and development needs as part of their continuing competence obligations. Meeting the requirements set out in the competence statement is integral to the requirements of service and competence outlined in the SRA’s Code of Conduct for solicitors, RELs and RFLs.


Resource (most recent first):

CILEx Reg, Code of Conduct (2015).

Relevance to the call for evidence:

CILEx Reg sets out the expected competencies of regulated legal professionals in its Code of Conduct. In the Code, there are nine core principles, one of which is to act competently, in the best interests of your client and respect client confidentiality. 


Resource (most recent first):

FO, Code of Practice (2014).

Relevance to the call for evidence:

FO sets out the expected competencies of regulated legal professionals in its Code of Practice. The Code states that a notary shall provide a prompt and proper standard of service for all clients. 


Relevance to the call for evidence:

The research was commissioned by the General Medical Council to understand the effectiveness of CPD on practice and patient outcomes. One of the report’s findings is that when undertaking continuing professional development, the emphasis tends to be on the activity itself with comparatively little thought given to subsequent implementation and action.


Relevance to the call for evidence:

The LETR was a joint project between the SRA, BSB and CILEx Reg to review education and training requirements across regulated and non-regulated legal services in England and Wales.

In the report, competence is defined as the cluster of knowledge, skills and attributes necessary for a person to function effectively in a legal role. On assuring competence, the report states whilst initial competence is essential, it is not sufficient training for a working life that may span 40 or more years beyond qualification.


Relevance to the call for evidence:

The report, which was commissioned by the LSB, takes the three dimensions of quality legal services defined by Professor Mayson [see reference in table to Mayson’s report] and sets out what the definitions mean for consumers in real terms. A competent legal professional is one who has:

  • good technical skills and knowledge about the law
  • an ability to understand and apply knowledge/skills
  • provides good client service
    keeps clients informed, has empathy, and follows clear processes
  • provides advice that is useful to clients as it relates to their circumstances and helps them move forward.

Relevance to the call for evidence:

The report was commissioned by the LSB during development of QASA. QASA was led by the SRA, BSB and CILEx Reg and it aimed to address perceived quality issues with some criminal advocates by developing the concept of graduated competence and the need for regular assessment to progress or maintain accreditation. QASA was ultimately not adopted for a combination of reasons.

The report from Human Assets discusses the robustness of different competence assurance methods. The report references the Miller’s Pyramid model, which aims to assess what an individual knows [about], knows how [to do], shows how [to do] and does [in fact do].


Resource (most recent first):

LSCP, Quality in Legal Services (2010).

Relevance to the call for evidence:

The report from the LSCP, which was set up to provide high quality, evidenced-based advice to the LSB to guide our decision-making, defines quality in the legal services sector as combining up-to-date legal knowledge and skills with good client care to deliver advice in a way that is useful. The report states, on assuring ongoing competence, that the entry requirements for lawyers do not provide a lifetime guarantee of quality, as has been accepted in other professions.

The report also found that consumers find it difficult to know whether the legal services they receive are good quality, tend to assume legal professionals are competent, and that there are robust checks in place to ensure this.


Relevance to the call for evidence:

In the report Professor Mayson discusses the quality of legal services in three dimensions, including technical quality, service quality and the utility of the advice and service provided.


Relevance to the call for evidence:

CCBE training for lawyers includes statements such as, ‘a high level of professional competence is one of the core principles of the legal profession…Lawyers cannot effectively advise or represent the client unless they have had the training necessary to enable a professional to keep pace with continuous changes in law and practice and in the related technological, social and economic environments.’



Consumer expectations of competence


This section of the call for evidence considers consumers’ competence expectations for legal services and other sector professionals, as well as the trust that consumers have in different professions. The section also introduces consumer segmentation; breaking down different types of consumers, consumer problems and legal activities.

Resource (ordered by date)

Relevance to the call for evidence


Relevance to the call for evidence:

The Legal Ombudsman collates and publishes complaints data on an annual basis. This data shows the types of complaints made by consumers (e.g. failure to advise) and that some legal services attract more complaints than others (e.g. conveyancing and probate).


Resource (ordered by date):

LSCP, Tracker Survey (2019).

Relevance to the call for evidence:

The LSCP commissions YouGov to conduct an annual survey of people who have used legal services in the last two years. Key findings from the 2019 survey include:

  • 40% of consumers recall seeing information about the staff, service and/or timings for delivery of services
  • 84% of consumers are satisfied with the legal service. 37% of consumers are dissatisfied but do not complain

Resource (ordered by date):

Ipsos Mori, Trust: the Truth (2019).

Relevance to the call for evidence:

The 2019 report compares the degree of trust people have in different professions/individuals globally. The data shows that respondents had less trust in lawyers in Great Britain (26%) compared with doctors (67%), teachers (58%) and ordinary men/women (37%). Respondents had more trust in lawyers compared with bankers (13%) and politicians (11%).


Relevance to the call for evidence:

In 2016 the Competition and Markets Authority reviewed the legal services sector to examine competition and consumer protection issues. The review led to a number of recommendations regarding the quality of legal services provided to consumers, including that consumers needed to have better information available…when they are identifying their legal needs and the types of legal services providers who can help them. The Consumer Panel has since been exploring the development of quality indicators for this purpose.


Relevance to the call for evidence:

This work analyses the legal services sector and makes a range of findings, including that there is currently limited consensus on what the appropriate level of quality looks like for consumers and that it is not clear who is best placed to assess the quality of legal services.


Relevance to the call for evidence:

The report sets out a framework for segmenting consumers. This work was commissioned by the LSB and uses observable characteristics – types of consumers; consumer problems; and legal activities – to capture what might cause the legal services market to function in a different way.



Competence in the legal services sector


This section of the call for evidence considers how legal regulators and the profession currently assure ongoing competence, highlighting their tendency to rely on CPD. The section also considers potential competency risks that have been identified in some practice areas or for some legal professionals.

Resource (ordered by date)

Relevance to the call for evidence


Resource (ordered by date):

TLS, Accreditation.

Relevance to the call for evidence:

TLS has a number of quality marks that recognise competency and expertise in specific areas of law, such as family law, personal injury law and criminal litigation. In order for legal services providers to be accredited with any voluntary quality mark, there is an application and assessment process that must be followed.


Resource (ordered by date):

CLC, Conveyancing 2030 (2020).

Relevance to the call for evidence:

This report examines what the future of conveyancing would look like, asking questions such as:

  • what are the new skills conveyancers may need to succeed in this new world?
  • will curriculum for trainees need to change and can ongoing training support those who are already working in conveyancing?
  • will it be the role of regulators to set competences in this area?

The report notes, ‘soft skills such as communication skills, listening skills, and empathy will become ever more important as the ability to build relationships becomes even more central.’


Resource (ordered by date):

SRA, Higher rights of audience (2019).

Relevance to the call for evidence:

The SRA requires legal professionals to gain a HRA certification before they are permitted to act as advocates in higher courts. The scheme requires all applicants to pass an advocacy assessment based on the HRA competence standards.


Relevance to the call for evidence:

The Crown Prosecution Service sets out its own requirements for the regular performance monitoring of in-house advocates. This includes requiring advocates to undergo twice yearly assessments in accordance with the Individual Quality Assurance Framework. At least one of these assessments should relate to a contested case.


Relevance to the call for evidence:

The Land Registry publishes data on a quarterly basis setting out the number of requests for information it sends to customers about their applications. Analysis of the September 2019 data shows that high volumes of the Land Registry’s requisitions can be attributed to avoidable errors, including those made by legal professionals.


Relevance to the call for evidence:

In October 2019 the LSB held a roundtable discussion on ongoing competence in Newcastle with attendees representing a range of perspectives including solicitors, barristers and judges, representatives for consumers, the court service and legal academics from a number of law schools.  Participants at the roundtable shared comments such as:

  • the quality of supervision varies greatly across lawyers, firms and specialities
  • the current system relies on individuals self-assessing the limits of their own competence, which can be problematic
  • a range of tools may be needed to assure an individual’s competence throughout their career and there could be a role for customer/client feedback as well as peer review and reflection

Resource (ordered by date):

SRA, Assuring Advocacy (2019).

Relevance to the call for evidence:

The SRA consulted on its plans to improve how the quality of civil and criminal advocacy is regulated. This included consulting on proposals to:

  • introduce revised HRA standards
  • require that the HRA assessment is taken following admission
  • require Youth Court solicitors to pass the HRA qualification
  • support reporting on advocacy standards (to enable the SRA to act when there are concerns about advocates’ competence)

Relevance to the call for evidence:

The LSB November 2019 performance assessment discusses the work the regulators, including the SRA, BSB and CILEx Reg, have done to identify and respond to advocacy quality risks.


Relevance to the call for evidence:

This report details the different CPD requirements for legal professionals in EU and EEA member states. Of the 27 EU and three EEA member states that replied to CCBE’s survey, two-thirds have compulsory CPD requirements.


Relevance to the call for evidence:

In 2019, BSB published an independent report on the impact of its CPD scheme. Key findings include:

  • ‘a majority of barristers found that CPD activities are effective in developing knowledge, keeping up to date with developments in a practice area, and addressing any knowledge or skills gap
  • the new scheme has expanded the range of activities that can now count as CPD and this flexibility of CPD choices is welcomed by many barristers
  • barristers found it difficult to understand what the BSB meant by the concept of ‘reflection’ and the role it plays in their learning and development.’

Relevance to the call for evidence:

The SRA carried out the thematic review to better understand how firms deliver residential conveyancing services. The research shows that:

  • over 90% of firms received requisitions that were avoidable, though the majority of firms (over 60%) said this was exacerbated by the Land Registry making inconsistent decisions
  • some firms failed to include all of the services/fees a matter could reasonably be expected to attract in their initial quotes

Relevance to the call for evidence:

The report analyses the attributes considered to be essential for legal professionals and how these fit within solicitors’ roles. Key findings include that 9 in 10 solicitors agree that good business skills and good human skills are of increasing importance.


Relevance to the call for evidence:

The SRA and BSB commissioned independent research into judges’ perceptions of advocacy quality. Key findings include:

  • the most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience
  • while advocates were generally viewed to be competent, standards were seen to be declining in some areas e.g. core courtroom skills such as case preparation
  • Judges were uncertain when and how to report poor quality advocacy to regulators
  • advocates’ skills in dealing with young and vulnerable witnesses were seen to be largely improving

Relevance to the call for evidence:

The SRA published an analysis of trends in personal indemnity insurance for law firms ahead of seeking changes to minimum cover requirements. The data shows the types of claims recorded (e.g. inadequate research, technical errors) and that some legal services attracted more claims than others (e.g. conveyancing).


Relevance to the call for evidence:

This memorandum provides for mutual recognition of CPD across borders. It is noted that, ‘CPD activities help to guarantee the competence and independence of lawyers, which also contributes to strengthening democracy and the rule of law; Considering that CPD helps to update and develop the competence and knowledge, which is necessary for the practice of the profession of lawyer and strengthens the quality of services provided by them.’


Relevance to the call for evidence:

The BSB said the review found that standards of advocacy in the Youth Court were variable and as a result the interests of some of the most vulnerable people within the criminal justice system were not being adequately represented. Following the review, the BSB published Youth Proceedings competences and introduced a change to its Handbook.


Relevance to the call for evidence:

Sir Bill Jeffrey’s independent review of the legal services sector was commissioned by the then-Government to look into how criminal defendants are given independent legal representation in the courts of England and Wales. It found that while there was no hard evidence of widespread, poor quality advocacy, there was a level of disquiet about current standards among Judges; he said it would be a mistake to discount these views. 


Resource (ordered by date):

LSCP, Regulating will-writing (2011). 

Relevance to the call for evidence:

In 2011 the Consumer Panel carried out research into the quality of will-writing services, following a request for advice from the LSB. The research, which involved file reviews, interviews and case studies, found that many wills, including those written by regulated legal professionals, failed to reflect clients’ intentions or contained basic errors.



Competence assurance in other sectors


This section of the call for evidence considers how competence is assured in other sectors, including providing examples from the healthcare and education sectors. These examples explore methods such as revalidation and observation, which incorporate user feedback and independent assessment of skills and knowledge.

Resource (ordered by date)

Relevance to the call for evidence


Resource (ordered by date):

General Medical Council, Revalidation.

Relevance to the call for evidence:

Doctors are required to be licensed to practise in the United Kingdom and this licence must be revalidated every five years to confirm ongoing fitness to practise. The General Medical Council sets out requirements for doctors to complete revalidation, including requiring doctors to provide different types of supporting information such as complaints and compliments and proof of completed CPD.


Resource (ordered by date):

Nursing & Midwifery Council, Revalidation.

Relevance to the call for evidence:

Nurses and midwives are required to be registered to practise in the United Kingdom and they must revalidate their registration every three years to confirm their ongoing fitness to practise. The Nursing & Midwifery Council sets out requirements for nurses and midwives to complete revalidation, including requiring them to provide practice-related feedback, written reflective accounts and reflective discussion.


Relevance to the call for evidence:

Ofsted carries out regular inspections of schools according to its framework for inspection. The framework sets out the standards expected of schools, such as the quality of education provided, which are to be assessed and graded by independent inspectors.


Relevance to the call for evidence:

The Nursing & Midwifery Council commissioned Ipsos Mori to review the effectiveness of revalidation for nurses and midwives post-implementation. A key finding from the report is that revalidation is seen to be key to generating changes in practise, including cultural change, over time.


Relevance to the call for evidence:

The article explains, from the British Medical Association’s perspective, why revalidation was introduced for doctors. The British Medical Association says that revalidation is intended to gradually increase quality in healthcare for patients through self-assessment, appraisal, continuing education and reflective practice.


Relevance to the call for evidence:

The General Medical Council commissioned Sir Keith Pearson to review the implementation of revalidation for doctors on its merits. The report found that significant benefits were being delivered by revalidation and also made a number of recommendations for further improvements.


Relevance to the call for evidence:

OISC carries out premises audits to assist advisers and premises to remain fit and competent, comply with OISC standards and guidance on competence and act in the best interests of their clients.



Glossary


ACCAAssociation of Chartered Certified Accountants
BSBBar Standards Board
CILEx RegCILEx Regulation
CCBECouncil of Bars and Law Societies of Europe
CLSBCost Lawyers Standard Board
CLCCouncil for Licenced Conveyancers
CPDcontinuing professional development
FOFaculty Office
HRAHigher Rights of Audience
ICAEWInstitute of Chartered Accountants in England and Wales
IPRegIntellectual Property Regulation Board
LETRLegal Education and Training Review
LSCPLegal Services Consumer Panel
OISCOffice of the Immigration Services Commissioner
RELregistered European lawyer
RFLregistered foreign lawyer
SRASolicitors Regulation Authority
TLSThe Law Society
QASAQuality Assurance Scheme for Advocates