External examining: a view from the profession

Nigel Bastin, the Bar Council

Presentation from the UKCLE/ALT workshop on external examiners, 6 June 2003

Nigel Bastin, Head of Education and Training at the Bar Council, gives the perceptions of the professional bodies on the external examiners system.
My remit is to provide a view from the profession. However, that view is influenced by my own past experience. From 1968 to 1996 I was an academic, and not only acted as an internal examiner but also as an external examiner at a range of institutions. In addition, I have been a head of department, dean of faculty and member of a university’s academic standards committee. I have seen the system from all sides and I have seen the changes caused by increased numbers, modularisation and poor remuneration.

Overall, we all proclaim our commitment to the external examiner system, but as recent history shows there has been a real reluctance to reform and strengthen the system (because that threatens ‘autonomy’) and to invest in it. This may be about to change – one can only hope!

The law degree

What is the profession’s view of the external examiner system? Of course we see it as important for the same reasons as everyone else, but because we recognise a qualifying law degree as satisfying the initial or academic stage of training for entry into the legal profession the system has particular importance.

First, for ensuring the standards of a particular law degree course. A consultation paper issued by the Bar Council and the Law Society in July 2002 stated:

There are general worries about quality and standards, and a perception that some law degrees are of an inadequate standard to equip students to progress onto a professional career in law. We need to find a way to demonstrate that confidence can be had in the quality and standards of the wide range of law degree programmes, and that deficiencies, where they exist, will be identified and addressed with rigour.

(The academic stage of training for entry to the legal profession: standards, content and related issues: a consultation with law faculties offering qualifying law degrees)

Of course, there were howls of protest about this comment, and demands to prove it. I can assure you that there are ‘worries’ and there are ‘perceptions’. Whether they are justified or not is not the issue. The fact remains that these need to be addressed. One way that they can be addressed is by a robust external examiner system.

Secondly, for ensuring some comparability of standards across all qualifying law degree courses – this second point is of particular importance. As was stated in another consultation paper issued in July 2002:

We have a responsibility to do what we can to ensure that all law graduates have the same opportunities to compete for places on vocational courses and for training contracts and pupillages. We cannot condone a situation where some law graduates may be excluded from opportunities to progress within the legal profession solely on the grounds of the institution they attended. Such a situation is not only unfair to students but also has significant implications for access to the profession and the promotion of diversity within it.

(The academic stage of training for entry to the legal profession: standards, content and related issues: a consultation with LPC and BVC providers and the Bar and Solicitor organisations)

A wider role?

Does the profession have a wider role than simply being an interested bystander? Should and could we be more proactive in the process itself?

The Dearing Inquiry (1997) seemed to accept that professional bodies had a role in setting standards, although much of this was in the context of engineering courses. After the publication of the Dearing Report I met with Sir Ron and the then Chairman of the Bar. Within the context of his report, Sir Ron could see nothing wrong in professional bodies involving their own external examiners on degree courses.

Tempting though it might be to suggest going down that route with qualifying law degrees (after all we approved CPE external examiners) it is probably not practical in this day and age, due to several factors:

• only a minority of students on law degree courses enter the profession
• the number of law degrees – around 300
• potential conflicts of interest
• cost – the Bar Council’s external examiner system for the eight Bar Vocational Courses costs £50K+

So, do not worry – that will not happen! However, we do perhaps need some form of greater involvement in the process, because, after all, a qualifying law degree is part of the process of becoming a professionally qualified lawyer. We therefore have ‘interests’ – like other professional and statutory bodies. This is recognised in the Quality Assurance Agency’s Code of practice on external examining, which ‘hints’ at a wider role. The first precept sets out the general principle:

An institution should require its external examiners, in their expert judgment, to report on:
 
Whether the standards set are appropriate for its awards, or awards elements, by reference to published national benchmarks, the national qualifications frameworks, institutional programme specifications and other relevant information.

Precept 2 recommends that institutions should state clearly the various roles, powers and responsibilities assigned to their external examiners. In the commentary the Code says:

In considering the functions of external examining, institutions will need to determine how their processes relate to, for example:
 
The setting of their own standards, including any associated with professional and statutory bodies.

Guidance

Of course, we all know that the Code is just something that an institution is supposed to have regard to! However, most – if not all – universities do adhere to it. This being so, how do universities gain ‘relevant information’ to assist in setting standards associated with us? I do not know the answer – but anxious to assist, in our consultation with law faculties we asked the question:

Should we offer guidance and perhaps training to external examiners on qualifying law degrees?

(The academic stage of training for entry to the legal profession: standards, content and related issues: a consultation with law faculties offering qualifying law degrees, para 15)

Four respondents were in favour of the professional bodies offering guidance to external examiners, and one was in favour of them offering training. 30 were opposed to the professional bodies offering any guidance or training, two suggested that the professional bodies could monitor the external examiner process without being directly involved. Three suggested that a more informal approach of links between academic and professional bodies would be more helpful.

Of those against the proposal:

• five said that it would deter potential external examiners
• 12 pointed out that external examiners are already subject to the Quality Assurance Agency’s code of practice
• five questioned who would pay for training
• nine pointed out that external examiners are experienced academics and questioned what the professional bodies could teach them
• one stated that such training would simply duplicate the training provided to external examiners by universities, and would therefore be an unnecessary expense

As far as the universities are concerned, they were equally lukewarm!

Guidance should be provided to the external examiners on the skills required by the professional bodies.

(The academic stage of training for entry to the legal profession: standards, content and related issues: a consultation with higher education institutions offering Qualifying Law Degrees, para 15)

16 institutions stated that guidance to external examiners with regard to the expectations of the professional bodies and their duties in relation to the law benchmark standards was already provided and required by the Quality Assurance Agency. Eight accepted that it should be provided and 12 rejected the proposal.

Five institutions agreed that training should be provided to external examiners by the professional bodies, including one that agreed, as long as it was imposed nationally. Seven agreed that written guidance from the professional bodies would be useful and 35 rejected the proposal outright. A number of the latter were concerned about institutional autonomy, whilst a majority considered that their training was sufficient, and some considered the professional bodies to have nothing to offer in the area.

Since then, of course, things have moved on, with the white paper on the future of higher education. This clearly has a strong vocational orientation, with plenty of emphasis on employer involvement. In relation to external examiners it proposes:

• to strengthen the training given by institutions both to enable staff to fulfill their roles as internal examiners and to prepare them to take on the role of external examining
• to ensure that institutions consistently provide full briefing and induction to their newly appointed external examiners by establishing a national development programme for external examiners

These arrangements are to be in place by 2004-05. In addition, you are going to have to publish summaries of your external examiner reports from 2004.

The way forward

As part of our overall review of quality assurance we have been looking at the evolving national scene and how we might link into it. Our new policy is set out in the March 2003 document, The way forward.

The underlying principle is one of working in partnership with universities. There is here a subtle but important change from the past. On the issue of standards and quality assurance, we see our relationship as being with the university rather than the law school. This does not mean that dialogue with law schools will no longer take place. It is simply that the university quality assurance department is to take the place of the Quality Assurance Agency.

In relation to external examiners, our policy is set out in paragraph 5(vii) of The way forward, which states:

“ …considerable emphasis is being placed upon the role of external examiners generally, and you will be expected to provide induction and training from 2004. In the light of 2(vii) of the Joint Statement, we consider this an area where we can provide guidance to you which you can, if you wish, feed into the induction and training of external examiners of qualifying law degrees. The issue of such guidance should not be seen as interfering with your institutional autonomy, but rather supporting the work of your own quality assurance team. ”

Paragraph 2(vii) of the Law Society and Bar Council’s Joint statement on qualifying law degrees already requires:

“ The course of study will be one which satisfies the external examiners of the degree programme of which it forms part that, in addition to the Areas of Performance set out in the Benchmark Standards, the students on the course of study should have acquired the knowledge and general transferable skills set out in Schedule One. ”

A question to those of you who are external examiners on qualifying law degrees – how many of you were given the law benchmark? How many Schedule One or the Joint statement? How many of you know what is in Schedule One?

Clearly looking at that subparagraph, any guidance given by a university to external examiners of qualifying law degrees must at the very least make reference to the Joint statement, and the university should provide them with a copy of the law benchmark statement and Schedule One of the Joint statement.

We may however decide to go further and prepare more detailed guidance – no decision has yet been made. But the process out of which any guidance will come will commence next session with the establishment of a working party under auspices of the Joint Academic Stage Board to undertake the task, and that working party will include experienced external examiners. But before too many alarm bells ring, any additional guidance will not obligatory.

References

• Bar Council and the Law Society (2003) Quality assurance and qualifying law degrees: the way forward: report to higher education institutions
• Bar Council and the Law Society (2002) The academic stage of training for entry to the legal profession: standards, content and related issues: a consultation with higher education institutions offering qualifying law degrees
• Bar Council and the Law Society (2002) The academic stage of training for entry to the legal profession: standards, content and related issues: a consultation with law faculties offering qualifying law degrees
• Bar Council and the Law Society (2002) The academic stage of training for entry to the legal profession: standards, content and related issues: a consultation with LPC and BVC providers and the Bar and Solicitor organisations
• Bar Council and the Law Society (1999) Joint statement on qualifying law degrees (PDF file)
• Quality Assurance Agency (2000) Law benchmark statement

Last Modified: 4 June 2010