A new ‘super-exam’ is designed to open up the profession, but there is no evidence it will.
Yes Minister’s Sir Humphrey would probably describe the Solicitors Regulation Authority’s proposal to proceed with the Solicitors Qualifying Examination (SQE) without trialling it or even producing specimen assessments as ‘courageous’. The regulator risks damaging public confidence in the profession and the employment opportunities of a generation of prospective solicitors.
The SRA’s second consultation provided a little more information about the SQE but still leaves everyone in the dark as to the exact nature of the assessments. We are told that SQE1 will ‘assess functioning legal knowledge through a series of six examinations’ (paragraph 21). For five of the six exams, candidates will have to answer 120 questions in three hours; for the sixth (wills and the administration of estates), candidates will face 80 questions in two hours. Students will have an average of 90 seconds to answer each question.
If the SRA wants to attract entrants to the profession who ‘shoot from the hip’ and do not reflect on the advice that they give, this seems an excellent approach. However, much of the reason expressed for the change is the SRA’s concern about the number of claims being brought against solicitors (see paragraphs 36-38 of the second consultation). An exam system based on instant responses to complex questions might not seem the best way to encourage diligent practitioners. They should be learning to give advice having thought carefully about the law, any ethical issues and the interests of their clients. They should be ready to research issues on which they are not clear rather than give uninformed advice.
The SRA proposes that in addition to the 680 computer-assessed questions, there will be one research task and two writing exercises (a letter or email to a client and the same for a third party). This, the regulator concludes, will mean those who pass ‘should be reasonably prepared for their legal services workplace experience’ (paragraph 51). It is heartening that the SRA has such confidence. Whether the profession shares this confidence that a series of multiple choice questions, together with a single research task and two emails or letters, is an improvement on a qualifying law degree or CPE followed by the LPC, only time will tell.
SQE2 appears to replicate many of the skills tests found in existing LPCs. One surprise is that candidates will be assessed in just two of the five identified practice contexts. This would seem sensible if SQE2 was designed only to demonstrate competency in the areas assessed. However, the SRA is proposing that a candidate who passes will be deemed competent in all areas of practice. It is hard to see how competence in commercial and corporate practice and in wills and the administration of estates will demonstrate adequate skills in, for example, criminal litigation.
According to the SRA, one area of poor performance the changes are designed to address is the provision of legal services to asylum seekers (paragraph 37). Yet the proposed legal knowledge coverage of SQE1 does not include asylum and immigration law, and the skills of ‘client interviewing’ and ‘case and matter analysis’ developed by someone preparing for, for example, a wills-related assessment may not be readily transferable.
The changes are designed to open up the profession to under-represented parts of society, but there is no evidence that they will. In the absence of any testing of the SQE, it is impossible to assess its likely impact in terms of diversity and equality.
The Legal Education and Training Review provided excellent data on the state of the profession and barriers to entry. Rather than rely on evidence, the SRA seems to have blind faith that the as yet unwritten SQE will be designed in a way that will not unfairly disadvantage any part of society. Furthermore, it appears to believe that, by replacing the SRA-regulated LPC market with an unregulated SQE training market, all will be well with the world.
Paul Catley is head of The Open University Law School