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COMMENTARY FOR LAW SCHOOLS

GUIDANCE NOTE FOR LAW SCHOOLS ON THE BENCHMARK STANDARDS FOR LAW DEGREES IN ENGLAND, WALES & NORTHERN IRELAND: WORKING DRAFT FOR PILOTS
(Version November 1998)

INTRODUCTION
1. The purpose of these Benchmark standards is

(a) to guide institutions (e.g. Law Schools⁽¹⁾) in reporting clearly and accurately to the wider public (students, parents, teachers, funders and employers) the nature of their provision in a standard way;
(b) to provide a basis for institutions to devise their own learning outcome statements compatible with these Benchmark statements;
(c) to set as a minimum certain achievements which a student must demonstrate to be awarded an undergraduate honours degree in Law.

2. The Law Benchmarking Panel has decided to set out the national standard for Law by way of a

Threshold Statement which is set at the bottom of the third class honours degree. It defines the minimally acceptable graduate. These standards are concerned to ensure that those to whom an honours degree in law are awarded have demonstrated achievement in all the stated areas of performance by the time the award is made.

3. This statement covers all university education in law and legal studies. It is not limited to qualifying law degrees. The statement is limited to students who take at least 180 credits of legal subjects in their programme. No institution would be required to demonstrate that other students taking fewer credits in law have met the standards set out here. QAA intends to develop a range of benchmark standards in other disciplines. Institutions teaching a programme with less than 180 credits in legal subjects will have to choose a benchmark standard appropriate to it.

4. The QAA is also developing Programme Specifications, which are standard ways in which information on programmes of study can be presented. Within such specifications, there will be a section in which institutions will set out `What a graduate should know and be able to do on completion of the programme'. This will be one place in which a Law School can set down its own statement of standards. Such a Programme Specification will also be the place in which a Law School would state how the minimum proportion of legal subjects which would be studied in the programme and whether it qualifies a student for any specific route towards a career.

5. The nature of a Threshold statement: The Threshold Statement is set at the bottom of the third class honours degree. Few Law Schools will probably be content simply to describe the achievements of their students at this level. Most will prefer to describe the achievement of the typical student, rather than the minimally acceptable graduate. A description of the achievement of such a typical student is described here as a `modal statement'. Such a Modal Statement would typically be set at the 2.1/2.2 boundary. (An example of a modal statement can be found in Appendix A.)⁽²⁾ Nothing in this statement precludes a Law School from setting out its own statement of standards at modal level, provided that this is at least as high as the national threshold statement.

6. These Benchmark standards are set out as learning outcomes which must be satisfied by the time a degree is awarded. The standards do not specify the mode of study nor the learning methods by which a student is able to achieve these outcomes. No distinction is made between full-time and part-time study. Some of the outcomes could be achieved by prior learning which is accredited as part of a degree programme. (Here the awarding institution warrants that the student has achieved the requisite outcome.) But, in all cases, these standards are concerned to ensure that those to whom an honours degree in law are awarded have achieved all the stated requirements by the time the award is made. Prior learning and (in respect of some key skills) study of non-law subjects may be the route adopted by some students, whilst for others all the learning may be the result of study in the Law School. Whatever the route to these outcomes, the degree-awarding institution must be satisfied that the student has achieved the requisite outcomes. Where achievement is demonstrated by prior learning, an institution is expected to warrant that the achievement is still sufficiently current to feature in a statement of what a student is able to do by the time the degree award is given.

7. Learning Outcomes: Many Law Schools are familiar with the articulation of express statements of learning outcomes and marking criteria derived from them which are communicated to students. These help to make clear to students what is expected from them and to assist them in measuring their own progress. There is no requirement that institutions use this form of statement to articulate their own standards. The Subject Benchmarking Panel recognise that a significant number of institutions are not used to using learning outcome statements and it has included some illustrations of how the outcomes might be demonstrated and assessed within this text and in Appendix B.

LEVELS OF PERFORMANCE

8. The minimum standard set here at the bottom of the third class would be treated by many institutions as disappointing performance, given the entry qualifications of their students, and it is not the outcome expected of them. But, since the students are graduating with an honours degree, which is itself a significant level of educational achievement, this statement tries to set out positively what minimally acceptable graduates are able to do. Relative to other graduates, they may be deficient; but they have demonstrated an important level of attainment which justifies the social standing of a graduate and the public and private investment in higher education. Appendix B illustrates different levels of achievement in the various areas of performance. Appendix C reproduces criteria published in one of the papers for the HEQC Graduate Standards Report which shows the sorts of criteria which are used by institutions to award particular classes of degree. These two appendices may help institutions to relate this Threshold Statement of Benchmarks to their normal criteria used in assessment.

The concept of `satisfactorily' demonstrating achievement is critical and can only partly be captured in words. It depends on the professional judgment of examiners, informed especially by external examiners. They have to review the evidence presented by the student through the structure of the programme followed, the assessment on modules, progress files, student records and other processes and decide whether this is sufficient to meet the claims which this statement of standards makes for the minimum achievement of graduates.

Each institution will have to develop its own assessment criteria, appropriate to the activities through which students are expected to demonstrate their achievement in each one or combination of areas. These criteria, agreed with externals, will provide an objective basis on which an institution can claim that its students have reached the requisite standard.

AREAS OF PERFORMANCE

9. The standards set out in the section on `Areas of Performance' are a minimum level of achievement required to pass an honours degree in any institution. In devising the statements of what their own graduates can do at the end of their own programmes of study, institutions are expected to include all the features listed below. However, institutions will also wish to describe the outcomes expected of their students in terms appropriate to their mission.

10. This statement does not set out any requirements about the study methods which students will have to adopt in order to achieve these outcomes, nor does it make requirements about the way courses are structured. The activities which students undertake as part of their learning in the Law School must, however, be designed in such a way as to provide evidence that the student has attained the requisite standard in all required areas of performance.

11. Does everything have to be assessed? It is for institutions to decide on the appropriate form of evidence they require to be satisfied that a student has an appropriate level of achievement in a required area of performance. For the statement to be satisfied, it is sufficient that a student has passed the requisite standard in that area. There is no prescription about the form of evidence provided by a student nor of the form of record kept by the institution. In one institution, a student might show knowledge and general intellectual skills through passing sufficient law subjects, but might show key skills through activities recorded in tutorial reports, a student file, or a record of achievement or progress file. Other institutions may prefer to integrate assessment of key skills into performance on particular modules. Some outcomes, e.g. teamworking, may even be demonstrated by extra-curricular activities of which the student has provided sufficient evidence to the Law School. The Benchmark statement expresses no preference as to the form of evidence. In relation to some areas of performance, the structure of the learning activity itself may provide evidence that a student has achieved a requisite level. For example, a dissertation or project module might well be so designed as to require every student to demonstrate the necessary research skills and autonomy in order to pass it. But at all events an institution must have in place mechanisms which provide it with reliable evidence that students have reached the minimum standard in each area of performance. External examiners and QAA academic reviewers will expect to be informed of these mechanisms and to make judgements about their sufficiency.

12. As a preliminary exercise in reviewing how their existing programmes relate to these benchmark standards, institutions may find it useful to map their provision onto the areas of performance. In this way, they would be clearer as to how students are currently required to demonstrate achievement in the relevant areas and whether they do indeed have evidence in relation to all areas.

13. How much must be achieved? The statement makes it clear that a student should demonstrate achievement in all of the seven area of performances. Within each area of performance there are often a number of specific items. Not all of these items must be demonstrated, but a student must have a sufficient level of achievement in that area taken as a whole and sufficient reliability of performance that a Law School can confidently state that s/he has substantially demonstrated the outcomes of that area of performance. Ultimately the question of sufficiency is a matter of judgement exercised by internal and external examiners.

14. Knowledge:

Legal system studied: This statement applies to the study of any legal system for which an English, Welsh or Northern Irish university awards its degrees, even if is not in the law of that jurisdiction. The panel has not taken a view on the legitimacy of law degrees awarded by an HEI which are not in the law of a UK jurisdiction. Since validation is recognised as a legitimate activity for HEIs, then institutions may wish to validate law degrees in other jurisdictions. Should this be the case, this statement applies with equal force as in respect of degrees in English and Northern Irish laws.

Questions have been raised as to whether an ability to compare the law in one jurisdiction with others should be a requirement. We believe this is desirable, but not a minimum requirement for graduation with an honours degree in every HEI.

The law of the European Union and of the European Convention on Human Rights and Fundamental Freedoms are relevant to most European legal systems as part of their domestic law and are not specified as separate requirements here.

Principal Features: The statements requires an overview of the main features and ideas involved in a legal system, rather than requiring detailed knowledge of every major branch of law. Within such a broad framework of knowledge, students can be selective as to the areas in which they engage in detailed study.

Study in depth: Unlike professional requirements, this statement does not require students to demonstrate depth of study in particular branches of law. This is for the student to choose within the framework established by a particular HEI.

Study in context: Within different kinds of degree programme, there will be different emphases on the context of law. Each institution would specify the kinds of context to which they would expect their students to relate their knowledge of substantive law. Study in context includes that a student should be able to demonstrate an understanding, as appropriate, of the relevant social, economic, political, historical, philosophical, ethical, and cultural contexts in which law operates, and to draw relevant comparisons with some other legal systems;

15. Application and problem-solving: An ability to apply knowledge and to solve problems need not be demonstrated in relation to each subject studied. It is sufficient that a student can demonstrate with sufficient frequency an ability to apply knowledge. A student might demonstrate application through moots, law clinics, tutorial work, as well as through conventional problem questions in unseen examinations.

The Ormrod Report suggested that one of the three features of the academic stage of legal education was to develop an ability to handle facts and apply abstract concepts to them. This is certainly one of the aspects which Law Schools would wish to test in the area of application.

16. Sources and research: There are a variety of ways in which this can be demonstrated. A dissertation may well be used in some law schools whereas others will set a number of assignments or projects over the course of the degree which enable a student to demonstrate ability to use primary sources and to undertake legal research. The structure of taught modules may require students to undertake independent research for seminars, even though the final assessment is by terminal written examination. The essential point is the evidence of research activity. In particular areas, it may well be appropriate to require students to engage in research which involves non-legal sources and materials, as well as legal sources.

17. Analysis, synthesis, critical judgment and evaluation: These general intellectual skills are likely to be demonstrated pervasively through a programme of study, particularly in the final years. The essential point is that students should be required to undertake exercises (assignments, coursework, or examinations) which enable them to demonstrate that they have such abilities.

The skill of analysis requires, inter alia, that students be able to discriminate between the legally relevant and the irrelevant. Synthesis can be demonstrated through a variety of tasks, whether it be bringing together material studied in lectures, seminars and wider reading, or in bringing together material from different assigned reading or research.

Critical analysis is recognised as a key attribute of graduates. It involves the ability to identify flaws in an argument. This can be demonstrated in relation to a variety of tasks, e.g. commentary on a new case or article. In evaluation, ability to offer reasons for a point of view is essential, though the depth and fullness of the justification will not be very great. The panel considers it sufficient that the student can choose between the views of authors by adopting one of the perspectives with limited further justification, rather than requiring a developed personal point of view.

18. Autonomy and ability to learn: This is perhaps the key feature of graduateness. The ability to learn and make use of learning in an independent fashion is what is generally taken to distinguish the final year student from the first year student. The learning activities required by a Law School should be such that students should be required to demonstrate what they can do independently, rather than just demonstrating that they have learnt what they have been told. This can be demonstrated by the structure of a particular module. For example, all students may be required to study a module without lectures and which requires them to prepare material for seminars, not all of which is directed by the teacher. This could provide a basis of evidence on whether individual students are able to learn on their own with limited guidance.

Limited Guidance: Obviously, an independent learner will need some support and some broad structure within which to operate. The extent of guidance required will depend on a student's stage of development in the field and the complexity of the material. The independent graduate should be able to take the initiative to seek support and feedback.

Ability to reflect critically: A student should be able not only to learn something, but to reflect critically on the extent of her or his learning. At a minimum, a student should have some sense of whether s/he knows something well enough or whether s/he needs to learn more in order to understand a particular aspect of the law.

Key Skills⁽³⁾

19. Communication and Literacy: Law students are expected to be good at both written and oral communication. Whereas written communication is assessed heavily by formal examinations, oral communication is demonstrated by a variety of compulsory and voluntary activities, e.g. tutorial performance or mooting.

Law students are expected to be able to read complex primary materials and to find the key statements from them. As such the statement here adds little to the requirement under sources and research, but merely makes clear the broader applicability of the skills used in that activity.

20. Numeracy: Typically, law students demonstrate their ability to make use of numerical and statistical information in a variety of ways. Many legal subjects presuppose an ability to understand and make use of numerical and statistical information in sophisticated ways. In company law, succession or trusts, the student needs to be able to understand proportions in order to comment on the allocation of shares in companies, estates or trust arrangements, issues on the measure of damages also require understanding of numerical information. In subjects such as English Legal System or criminology, statistics might be used to demonstrate the effectiveness of civil justice or forms of crime prevention. The concern here is not the ability to undertake complex calculations, but to be able to use and evaluate the information provided as the basis of an argument.

21. Information technology: Given the background of many students, many aspects of performance may well have been achieved before they arrive in university. The requirement is fairly limited. In terms of word-processing, the essential skills required are to be able to produce a word-processed essay or other text and to present such work in an appropriate form. Information retrieval systems may, but need not, include LEXIS. Standard information retrieval systems would include electronic library catalogues.

22. Teamworking: A variety of activities can be used to demonstrate that students can work together in teams. Group projects are a typical way in which individual students provide evidence of their teamworking skills, but team negotiations or student-led tutorials would be other alternatives. Teamwork can be demonstrated not only by activities in class, but also on work placements or student-led court visits, as well as in some extra-curricular activities.

(1) In this statement `Law School' is used as a shorthand to describe any higher education institution which provides a programme of study which includes a substantial law content. It makes no assumptions about the organisation within that institution through which the programme is delivered.
(2) See further, the Report on Graduate Standards in Law which was distributed to Law Schools in December 1997 (available on the Internet: http://www.law.warwick.ac.uk/ncle).
(3) Further articulation of what might be involved in setting standards and assessing key skills can be found in the report of the Law Discipline Network on General Transferable Skills in the Law Curriculum (available on the Internet: http://www.law.warwick.ac.uk/ncle)