It is hoped that the new system for CPD will be in place for January 2013. The Wood Report concluded by offering a revised definition of CPD - any activity undertaken by a barrister which is relevant to the barrister’s areas or proposed areas of practice but is not part of the barrister’s normal professional commitments, which will:
- develop or improve the barrister’s knowledge of the subject matter of his or her practice or proposed practice, and develop to a high standard the skills required to conduct that practice;
- keep the barrister up to date with new knowledge and skills relevant to that practice;
- give clients and the public confidence that the barrister is skilled in the areas of practice in which his or her services are required; and
- create by participation in organised CPD events a collegiate ethos at the Bar which will contribute to the advancement of knowledge, skill and good practice within the profession.
Perhaps the most striking proposed change is to give more control to the individual barrister. The distinction between accredited and non-accredited activities is to be abolished in favour of a distinction between verifiable and non-verifiable activities, the total number of CPD hours will rise to 24 (12 at least of which must be verifiable) and by placing “more trust in the integrity of the practitioner” the barrister will sign a declaration attesting to certain matters including that the activities were “sufficient in terms of time, balance and range of activities in order to achieve my personal objectives of keeping my knowledge and skills up to date”.
It was appropriate then that this year’s Clementi Debate on 26 May 2011 should deal with the question of CPD.
Derek Wood CBE QC set down the principle that “legal education and training is a continuous process that ends only on retirement from practice”. As such, professional training for the Bar, including CPD, “must be based on a coherent system which focuses on the public interest and develops the skills that clients require of barristers”. With the further training provided by Inns, Circuits and Specialist Bar Associations, “the connections between legal education and practice could not be closer”.
He noted that his Working Group had examined the question of CPD in depth and had looked at the practices of other legal and non-legal professions. There was broad agreement on the general purposes of CPD: development of relevant knowledge and skills in one’s area of practice, keeping up to date with new developments, giving confidence to receivers of services and the public that professionals are skilled in their area of practice, and maintaining an ethos of professional collegiality. He saw it as a system that needed to be flexible and tailored to the needs of the individual practitioner.
There was no disagreement with those principles from Matthew Nicklin, a barrister member of the BSB. However he noted a number of problems with the current arrangements which seemed to be devised primarily for ease of compliance by the regulated and ease of enforcement by the regulator. The 12 hours of CPD was arbitrary and there is no real assessment of what the individual barrister is doing and whether that is sufficient for him. Altogether this has meant that “sight of public interest has been lost”.
He disagreed with the proposal for prescribing a certain number of hours of CPD, the Report justifying its decision to “alight” on 24 hours on the grounds that “the public will not think that 12 hours are enough”. This was, though, an unjustifiable “one size fits all” approach which “may range from regulatory overkill to regulatory neglect”. The number of hours required by each practitioner varies enormously in accordance with practice area, seniority and experience. “The quest to fix the value of X is flawed from the outset. The only virtue in having a fixed number of hours is ease of enforcement. But enforcing an arbitrary figure cannot achieve the objectives of CPD because it is measuring the means and not the ends”. He thought that it was better to “cast the responsibility on the barrister to assess CPD need and target the regulatory resources to measuring effectiveness and compliance”. He approved of the method of the Institute of Chartered Accountants which uses the model of requiring the individual to assess his or her own requirements for CPD.
He encouraged adoption of a rule similar to that imposed by the New Zealand Law Society: “A barrister must undertake the continuing education and professional development necessary to ensure an adequate level of knowledge and competence in his or her fields of practice”. He suggested the BSB should move towards using chambers monitoring to assess compliance – is the barrister holding himself out in areas for which he has done no CPD? The annual declarations would be used to identify variance from CPD study areas and areas of practice together with random and targeted investigations. Penalties should be proportionate to the regulatory risk.
Nichola Higgins, Chair of the Young Barristers Committee, set down her hallmarks for a system of CPD which would command respect.
First, she accepted the need for a minimum number of hours per year. “This sets the standard and the benchmark needs to be placed somewhere even if the precise figure is somewhat arbitrary”. The number should be meaningful without being onerous. There should however be no monthly quota: barristers should be free to accumulate hours of CPD as and when their practices allow.
Second, CPD must be affordable and not an extra financial burden particularly on young barristers. The BSB and the SBA’s should ensure that there is “a plentiful supply of cheap CPD options available”. Otherwise, the requirement to complete a large number of CPD hours will “simply become another barrier to entry to the profession”.
Third, the content of CPD courses and seminars must be “consistently relevant, focused, detailed and up to date”. Advocacy, ethics and law have been the bases of a barrister’s education but increasingly barristers have to have good business skills. There should be training on managerial skills, best business practice, human resources and company law. A rigorous system of CPD can raise standards across all areas of practice and prepare barristers for the future.
The consultation on CPD (including the Wood Report and the draft new CPD Handbook for comment) is available on the website at: www.barstandardsboard.org.uk/Practisingcertandcpd/CPDReview/. The closing date for responses to the consultation has been extended to 31 October.
Nichola Higgins, 15 New Bridge Street
Derek Wood CBE QC, Falcon Chambers
Matthew Nicklin, 5 Raymond Buildings