Diversity on barrister courses and in the legal profession was a pervasive theme in the responses to the Bar Course Aptitude Test (BCAT) consultation completed earlier this year. The Bar Standards Board (BSB) remains committed to diversity at the Bar, and it has been noted, for example, that both high and low scorers on this proposed BCAT test exist in various ethnic groups.
The Legal Services Board (LSB) has previously identified that the proposed BCAT has only been piloted thus far in limited circumstances, and this absolute uncertainty about how the test will perform in practice throws doubt in how the LSB can perform its regulatory duties in the public interest, according to a statement by LSB Chief Executive Chris Kenny. On account of this uncertainty, the LSB has asked the BSB to commit to undertake a five-year data gathering, analysis and evaluation period. Following the conclusion of this, a formal review will take place with a decision to “continue, revise, suspend or cease the BCAT”.
The early version of the BCAT published yesterday contains sample questions unsurprisingly exactly the same as known example questions of the Watson-Glaser test. This test has large samples of normative data, including from law schools around the world such as Thurgood Marshall School of Law in Texas Southern University. This school of law, under the auspices of its own Centre for Legal Pedagogy chaired by Professor Dannye Holley, Professor Anthony Palasota and Professor Edieth Wu, has conducted a number of studies using the test on existing students at their law school.
In this regard, it is illuminating to consider how the Watson-Glaser Test came about in the first place, as a learning exercise rather than an assessment exercise. The instrument is used already by a handful of City firms in their applications procedure. The language in the Bar Standards Board BCAT consultation report is one of ‘cut-offs’, especially in regard to the diversity impact monitoring. However, Goodwin Watson (1899-1976) and Edward Glaser (1911-1993) in their seminal work on critical thinking, focused on the link between rational thought and the educational process.
Their view of “critical thinking” is therefore as a set of teachable skills underlying successful learning, identified by five aspects of rational thought when effectively solving a problem: the ability to define a problem, the ability to elect pertinent information for the solution of a problem, the ability to recognise stated and unstated assumptions, the ability to formulate and select relevant and promising hypotheses, and the ability to draw conclusions validly and to judge the validity of inferences.
Alternative forms of this test allow the Thurgood Marshall School of Law to measure the development of these critical thinking skills, either as a consequence of specific instruction or over a long period of time. The ability to think critically is considered to be a desirable outcome of legal courses anyway. It is thought that law students should have an ability to extract relevant facts, and to distinguish them from legal or factual ambiguities, for example. This could of course be validly developed through other routes, such as the Masters degree or the Ph.D. degree, perfectly rationally.
All of this tends to beg the question: why didn’t the Bar Standards Board wish to use the test in charting any improvement of skills in critical thinking in barristers-to-be? This exercise would have been more fruitful, and would have allowed a more holistic view of the educational development of a barrister in training. For example, the interest in the development of ‘emotional intelligence’ in the psychological, organisational and leadership fields is substantial to thus of us who know these fields well. Taking a view of regulation as representative of a culture of ongoing obligations throughout one’s career, which all professional regulatory bodies undoubtedly do, it would have made more sense to use the application of the Watson-Glaser Test to encourage social mobility, rather than to limit it potentially unfairly. The fact that you can be instructed to perform well at the Watson-Glaser Test may put some students at an unfair advantage, dependent on their schooling, for instance.
Whatever then the outcome of the five-year data collection exercise, I believe it would be most valuable to consider the test performance of students as they progress through their career, from the positive perspective that any glaring critical thinking shortfalls can be ameliorated. This is of course assuming that the BCAT gets implemented in the first place by the Bar Standards Board, and that students are not overloaded through it.
