The Quality Assurance Agency Law Subject Benchmark Statement 2023

In March 2023, the UK Quality Assurance Agency (QAA) published the latest Subject Benchmark Statement (SBS) for Law. It was one of nine new subject benchmark statements published in that round with 15 published the previous March and a further three published in September 2023. This document provides the most recent attempt to set out what a law student can expect from studying an undergraduate degree of law in the United Kingdom. It provides, or at least seeks to provide, a sense of what the subject of law is and how it is approached and understood by law schools. The Advisory Board that has shaped the development of this statement has been drawn from across the UK higher education system and the statement went out for consultation with the sector and stakeholders. The final document reflects that complete process. As Chair of the 2023 Law SBS Advisory Board I am inevitably somewhat biased in my views about the statement, so my reflections here are an attempt to explain a little more about what the statement is seeking to achieve and to take the opportunity provided by the passing of a year since publication to reflect on the process itself rather than a comprehensive evaluation of the SBS.

Two documents were simultaneously published in March 2023 – the full Law Subject Benchmark Statement and alongside it a short “the basics” document providing a brief summary of the main document.¹ The full Statement was the product of almost a year-long process of development while the Summary is drawn from that larger document and is intended to provide a brief overview, particularly for non-specialists.

The Law Subject Benchmark Statement and the QAA

Law has long been a leading player in engaging with the QAA, being one of three subjects (along with chemistry and history) to develop and pilot the first iteration of the QAA subject benchmark statements. Leighton has previously noted the resignation of John Randall – the then head of the QAA in July 2001 – as a moment that would create uncertainty about the future of the organisation. The QAA had, it seemed, been emerging – since its creation in 1997 – as a more powerful organisation than the Council for National Academic Awards (CNAA) model that had managed quality standards for polytechnics that had been abolished almost a decade earlier in 1992.² This new more robust approach had seemingly upset Russell Group³ organisations who, Leighton noted, seemed to have forced Randall out of this role.⁴ The QAA has therefore arguably had a long history of seeking to create a shared sense of standards across a diverse sector but has also long attracted concern about the power it seeks to wield and found itself amidst debates about quality and standards of UK higher education and who controls them.⁵

The 2023 statement process found itself drawn into the current “culture wars” with numerous media outlets targeting the same subject round as law. While the law statement was not singled out for criticism, other subjects published alongside our draft were, including mathematics, computing and classics. There was a particular focus on any attempts to decolonise subjects and curricula⁶ while there was a broader assertion that the QAA was telling universities to “go woke” leading one right of centre journalist, Simon Heffer, to argue that universities should be defunded in response to the statements.

These claims rested on the notion that something was being “done to” universities by those outside them with a particular agenda. However, the QAA does not write the subject benchmark statements. They are instead produced by subject specialists: academics, students and key stakeholders in the field. Vicki Stott, Chief Executive of QAA wrote a blog for WONKHE in November 2022 seeking to respond to the criticism, noting that:

Contrary to how the coverage frames it, the Statements are not mandatory. If academics disagree with their content, they do not have to use that content in developing their courses. That is the basic tenet of academic freedom, something core to both our work and the sector’s, and mandatory statements would infringe institutional autonomy. Moreover, the process of updating the Statements is deliberately designed to be open and consultative, giving other academics in the sector the chance to input into their final draft.⁷

This may of course involve engagement with what has been termed decolonisation but is neither prescribing it nor limiting our consideration to that term. Instead, the statement seeks to provide a stimulus for law schools in undertaking programme design to reflect upon what it is that we do and why we do it. Nonetheless, the QAA does provide a standard template and did ask for four areas to be considered in all SBSs as part of the statement. How they were considered and responded to remained a matter for the individual SBS Advisory Groups. These “areas” consisted of: Equality, Diversity and Inclusion (EDI), Accessibility, Sustainability, and Entrepreneurship and Enterprise Education. All four elements are considered as part of the first section of the Law Statement under the section “Context and purposes of a Law degree”. Our Statement does not refer to decolonisation but seeks to define and understand EDI in the context of law, noting at 1.6 that:

Law, as a system of authority and power, may contribute to inequalities in society while also providing opportunities for challenge. In order to challenge the hierarchies that law arguably sustains, and to pursue legal interventions that seek to remedy discrimination, studying law can take a critical approach to understanding the relationship between law, power, and equality.⁸

The Statement goes on as part of 1.8 to note that:

Legal study may thus encourage reflective engagement with the history, politics and impacts of law and legal knowledge with respect to these issues. This includes the actual and potential uses and limitations of legal understanding in managing equalities in culture and society, highlighting the shifting role of law and legal institutions with respect to different forms of systemic injustice.

A similar approach to understanding the other areas in the context of law is taken. In each area, we also engaged with research produced by legal scholars, reflecting deeply on accessibility and disability,⁹ sustainability¹⁰ and entrepreneurship and enterprise education and what they mean for and are understood by law schools. So it is that in the context of accessibility we observe at 1.11 that “there are multiple disabled identities and disability in the context of studying law, and they should be understood in all its various forms. Disabled Law students can experience a complex transition through law school where identities are constructed and reconstructed on multiple occasions in different contexts”. Sustainability is rooted in the UN Sustainable Development Goals, while entrepreneurship and enterprise education notes the range of contexts and jurisdictions that law – and our graduates – might work in, and notes the evolution in legal services and emerging technologies including artificial intelligence.

An evolving role for the QAA and SBS

Recent years have seen a further shift in the role of the QAA in UK legal education. While the QAA remains an independent charity working to benefit students and higher education and focuses on a mission “to maintain and enhance quality and standards”¹¹ the Office for Students in England¹² primarily undertakes the role of monitoring quality and standards.

The Association of Law Teachers 2009 Lord Upjohn Lecture, delivered by Peter Williams, suggested that “strong, self-confident, self-regulatory and autonomous higher education institutions are a basic requisite of a modern democracy” and warned against political control of the academy. Williams suggested it was imperative that academics took quality more seriously than they had, lest other – less desirable – actors took ownership instead.¹³

The Higher Education and Research Act 2017 recast the regulatory landscape, with the creation of the Office for Students and arguably a more market-based approach to the higher education sector. In contrast to Williams’ approach, this was a significant political power grab by central government of universities. This trend has continued with the passing of the Higher Education (Freedom of Speech) Act 2023 and the appointment of Professor Arif Ahmed as the first Director of Freedom of Speech and Academic Freedom who also sits on the board of the Office for Students. In this new role Government effectively controls – for the first time – what universities (and their associated actors) can and cannot do and say. In contrast to the QAA SBS structure that allows disciplines to reflect on and define their approach we have political control. The failure to appreciate and defend real academic freedoms within the quality space has also allowed for the kind of “gaslighting” that we saw around the “woke” criticisms levelled at the draft SBS issued in 2022. Here the argument was this terrible woke organisation is making universities follow a woke agenda and thus we must defend freedom with new powers. In truth we had universities through their own experts suggesting approaches to curriculum design in contrast to a political appointee pursuing a politicised approach to expression at UK universities. It is staggering that this went by with minimal opposition and criticism from the UK HE sector. The SBS therefore remains one of the few areas that we as a scholarly community largely control. We abandon it at our peril.

Leighton noted back in 2001 regarding those pushing for a weaker QAA from the outset: “Let us hope that the best of QAA survives and that we in law teaching are not simply left with market forces, marketing and political or media friends as the apparent determining factors of quality for students and others”.¹⁴ A confusion as to the role of the QAA and seemingly a general tendency within much of the Academy to switch off at the mere mention of quality and standards or regard programme design for “someone else” has perhaps contributed to creating a fertile environment for others to seize control. For those passionate about legal education, there arguably remains a significant role for explaining the importance of legal education research and how it affects all who work within law schools.

The SBS is arguably a key element of validation events for institution programmes and can perhaps be of particular use in ensuring standards in franchised programme arrangements. However, the benchmark statements have themselves received relatively little scholarly scrutiny. Breakey provides one notable exception, critiquing the application of the 2007 statement by law schools in the context of the use of English in undergraduate law degrees.¹⁵ Davies and Jackson provide another, exploring how the Law SBS shaped one law school’s response to information literacy.¹⁶

Yet ignorance, confusion and contested notions around what the SBS is, how it can be used, and why it matters for law schools remain. Chair of the 2015 Law SBS, Professor Rebecca Huxley-Binns, used her 2015 Association of Law Teachers Lord Upjohn Lecture to consider the approach of that SBS to developing a new statement and specifically the use of threshold concepts:

I accepted, with pleasure, and then realised I had to find out what a benchmark statement actually is. In essence, it is a statement of threshold outcomes, and not a statement of threshold concepts. Subject benchmark statements are designed to describe the minimum required to pass a bachelor’s degree with honours. I do not underestimate the controversy of any subject benchmark statement, either now or how they were greeted by the academy when first introduced, and nor do I call for all benchmark statements to be redrafted in terms of threshold concepts; that is not their role. But that they are phrased in terms of outcomes made me uncomfortable.

Huxley-Binns went on to suggest that a statement is:

a combination of outcomes to be demonstrated in terms of knowledge, understanding and skills, as well as an acknowledgement that “a law graduate is far more than a sum of their knowledge and understanding, and is a well skilled graduate with considerable transferable generic and subject-specific knowledge, skills and attributes” and further that “study in law also instils ways of thinking that are intrinsic to the subject”¹⁷

Tony Bradney – who would later join the 2015 SBS – had previously noted the lack of consensus within and between law schools as to what a legal education should look like, noting that:

within university legal education this lack of consensus is reflected in wide-ranging divisions between those who favour vocational as against academic work, skills rather than knowledge, doctrinal rather than socio-legal and so on and so forth. These divisions are far from trivial and the positions held on all sides are often reflective of deeply-held beliefs. They produce very different conceptions of what counts as a good university law school and a good university law graduate.

And went on to say “benchmarking will only find a place in the culture of law schools as opposed to its paperwork if it can show that it connects with the central values of the law school”.¹⁸

The 2015 SBS – which both Bradney and I joined as Advisory Board members for the first time began the substantive document by stating at 1.1: “Studying law at undergraduate level is an academic matter”. The 2023 SBS opens with exactly the same line. This statement arguably reflects Bradney’s sense of control and goes on through the SBS to offer possibilities for law schools, seldom prescribing actions, although we do in some instances, for example stating at 3.6 that “Staff will be given opportunities for development”. Yet overall, freedom remains with law schools while expectations are set by us collectively. This is contrast to the “top-down” politicised control that we’ve seen will occur if academics retreat from occupying this quality space. This allows us, as academics, to reflect the debates and tensions that have long occupied legal education, also underlining the need for those debates informed by research and scholarship. John Bell – who was a member of the first Law SBS Advisory Board – noted back in 1999 that “now in Law, more than many other disciplines, we know that knowledge is ephemeral. It is the ability to find, analyse and criticise new legislation and case-law which is critical in a good lawyer, rather than just knowledge of established law”.¹⁹ This pointed to a tension between skills and knowledge that has largely been settled, at least for now, but that line of debate and legal education research is perhaps reflected in all the Law SBS iterations.

The Advisory Board

The 2023 statement is the fifth iteration of the Law SBS. The first was introduced in 2000, chaired by Professor Robert Hepple together with another 12 male academics. The second statement was published in 2007 chaired by Professor Michael Gunn who had not been part of the 2000 Board. He was joined by three male academics with Mike Cuthbert being the only Board member from 2000. In 2015 Professor Rebecca Huxley-Binns chaired the Advisory Board. She was joined by 16 other academics, three QAA officers, an employers representative,²⁰ three professional statutory regulatory bodies,²¹ a student reader, and finally a Scottish reader who was based in a law firm.²² Three scholarly societies were represented by academics appointed alongside their institution affiliation,²³ together with a representative from the Committee of Heads of UK law schools, again alongside their own institution affiliation.²⁴ There were no links between the 2007 and 2015 statements, with the 2015 statement effectively being a complete rewrite of the statement. This was also my first involvement in the QAA SBS process and I remember an energetic process filled with long and rigorous in-person discussions supported by discrete work packages that would be drafted and shared by email in between meetings. This Advisory Council was strikingly different not merely in terms of the statement content, but in terms of the Board composition with women joining the Board for the first time.

In 2019, a new statement was published and I chaired this, alongside Simon Bullock from the QAA. There were no other members and this was largely reflecting a shift in the role of the QAA in response to the changing regulatory landscape. The 2023 Statement was the first fully undertaken under that new landscape and brought a number of people of colour on to the Advisory Board for the first time. My hope was that in improving our own diversity we might better reflect the sector and produce a statement that similarly reflects the needs of the sector. Here it is worth noting that the 2023 process also differed from previous rounds in providing an application process for appointments. The QAA determined the appointment of the Chair and Deputy Chair(s). I was supported by Professors Deveral Capps and Caroline Strevens as my deputies and we then collectively appointed the Advisory Board, selecting colleagues to try and provide an appropriate skills mix and reflect the diversity of the sector. These applications had followed an open call. It is important that colleagues do consider putting themselves for these roles. While we had no shortage of applications – most candidates were unsuccessful – it is important that a diverse range of applicants reflecting the breadth of the sector do consider adding their voice in order that the SBS remains an important counter-weight to more politicised and centralised regulation.

Conclusion

Scholarship and research relating to the QAA in law and the SBS remain relatively scarce. Law is not unique in this regard. Bellingham has noted that “systematic, large-scale research on or evaluation of the use of the subject benchmark statements in assuring or enhancing quality and standards is lacking”.²⁵ In part this may because the ordinary documents of decision-making have been hidden and the thinking that goes into developing a SBS largely left confidential. While it is of course important that a robust debate can take place without colleagues feeling limited by anything that might be subsequently a public document, I do think it important – not least for the sector as a whole to view the SBSs as shared living documents – that we do make as much of those discussions as open as possible for scholars to study and debate alongside the published statements.

I’m delighted that the Institute of Advanced Legal Studies (IALS) now holds my own documentation relating to this process including minutes from all the meetings. This was a unanimous decision of the 2023 Law SBS and – after some debate – supported by the QAA. My hope is that this sets a precedent not just for future Law SBSs but for other subjects too to deposit their documentation for future archival use. Similarly, there is arguably scope for future groups to go further. The 2023 SBS groups met online with these calls typically recorded for the future of minute taking. It is quite possible for future groups to agree at the outset that these recordings are themselves deposited for future researchers, with perhaps an appropriate embargo period imposed. I would hope there is thought given to this as part of the future process.

Disclosure statement

The author Chaired the 2023 Quality Assurance Agency (QAA) Law Subject Benchmark Statement Advisory Board.

Notes

¹ <www.qaa.ac.uk/the-quality-code/subject-benchmark-statements/subject-benchmark-statement-law> accessed 20 May 2024.

² The Education Reform Act 1988 had given major public higher education institutions more freedom and the Further and Higher Education Act 1992 abolished CNAA and ushered in the “post-92” universities. See: Gareth Williams, “Subject Benchmarking in the UK” in David D Dill and Maarja Beerkens (eds), Public Policy for Academic Quality: Analyses of Innovative Policy Instruments (Higher Education Dynamics book 30, Springer 2010) 157–81.

³ A self-selecting group of 24 universities that describe themselves as “world-class, research-intensive universities”. See <https://russellgroup.ac.uk/about/our-universities/> accessed 20 May 2024.

⁴ Pat Leighton, “Government and Education News: Quality, the QAA, and Some Major Tensions in Higher Education” (2001) 35 The Law Teacher 387.

⁵ See for example: House of Commons Innovation, Universities, Science and Skills Committee, Eleventh Report: Students and Universities (HC 2008–09, 170–I) <https://publications.parliament.uk/pa/cm200809/cmselect/cmdius/170/170i.pdf> accessed 20 May 2024.

⁶ This media commentary would have benefited from the insights of Law SBS panel member Folúkẹ́ Adébísí and their research. See for example: Folúkẹ́ Adébísí, Decolonisation and Legal Knowledge: Reflections on Power and Possibility (Bristol University Press 2024).

⁷ Vicki Stott, “The Truth about the QAA Subject Benchmarks” (WONKHE, 17 November 2022) <https://wonkhe.com/blogs/the-truth-about-the-qaa-subject-benchmarks/> accessed 20 May 2024.

⁸ QAA, Subject Benchmark Statement: Law (March 2023) <www.qaa.ac.uk/docs/qaa/sbs/sbs-law-23.pdf?sfvrsn=c271a881_6> accessed 20 May 2024.

⁹ See, more generally: Tina McKee and others, ”The Fairness Project: The Role of Legal Educators as Catalysts for Change. Engaging in Difficult Dialogues on the Impact of Diversity Barriers to Entry and Progression in the Legal Profession” (2021) 55 The Law Teacher 283.

¹⁰ See, more generally: Colin T Reid, “Education for Sustainable Development and the Professional Curriculum” (2016) 50 The Law Teacher 300.

¹¹ QAA, “About Us” <www.qaa.ac.uk/about-us> accessed 20 May 2024.

¹² <www.officeforstudents.org.uk/about/> accessed 20 May 2024.

¹³ Peter Williams, “Quality Assurance: Is the Jury Still Out?” (2010) 44 The Law Teacher 4, 8.

¹⁴ Pat Leighton, “Government and Education News: Quality, the QAA, and Some Major Tensions in Higher Education” (2001) 35 The Law Teacher 387, 390.

¹⁵ Peter Breakey, “Assessment of the Use of English in Undergraduate Law Degrees: Are Law Schools Complying with the QAA Subject Benchmark?” (2012) 46 The Law Teacher 38.

¹⁶ Jackie Davies and Cathie Jackson, “Information Literacy in the Law Curriculum: Experiences from Cardiff” (2005) 39 The Law Teacher 150.

¹⁷ Rebecca Huxley-Binns, “Tripping Over Thresholds: A Reflection on Legal Andragogy” (2016) 50 The Law Teacher 1, 10.

¹⁸ Tony Bradney, “Benchmarking: A Pedagogically Valuable Process? An Alternative View” (1999) 2 WebJCLI <www.bailii.org/uk/other/journals/WebJCLI/1999/issue2/bradney2.html> accessed 20 May 2024.

¹⁹ John Bell, “Benchmarking: A Pedagogically Valuable Process?” (1999) 2 WebJCLI, <www.bailii.org/uk/other/journals/WebJCLI/1999/issue2/bell2.html> accessed 20 May 2024.

²⁰ Tony King from Clifford Chance.

²¹ Solicitors Regulation Authority, Bar Standards Board and the Chartered Institute of Legal Executives.

²² Shepherd and Wedderburn LLP.

²³ Association of Law Teachers (Professor Chris Ashford), Society of Legal Scholars (Professor Anthony Bradney) and Socio-Legal Studies Association (Dr Jess Guth).

²⁴ Sheree Peaple.

²⁵ Laura Bellingham, “Quality Assurance and the Use of Subject Level Reference Points in the UK” (2008) 14 Quality in Higher Education 269.