The regulator has delayed a decision on a new centralised ‘super-exam’ following a storm of criticism. Can it win over the sceptics? Grania Langdon-Down reports.
Any decision on the Solicitors Regulation Authority’s plan to reform the qualification process has been pushed back to next year after a forensic examination by the profession and legal education providers left no aspect unchallenged.
Its harshest critics call the proposal, which is based round a centralised assessment with no prerequisites for any prescribed vocational training, ‘utterly misconceived’ and an abnegation of the authority’s responsibility to regulate the training process.
Even those who support the principle of centralised assessment, including the Law Society, remain unconvinced by the SRA’s claim that its plan to improve standards by making them more consistent will achieve its aim of improving diversity by making the process cheaper and less prescriptive.
So, while there is widespread relief among the profession and legal education providers that the SRA appears to have listened to their concerns, they remain deeply worried that its conviction that there is still a strong case for such radical change may have damaging consequences.
The SRA will now have to work hard to produce a sufficiently detailed consultation paper in the autumn to win over sceptics who fear its approach could undermine the value of the title of solicitor here and abroad, while creating new logjams both pre-qualification and at the newly qualified stage.
The importance of getting the qualification process right is so critical that it prompted the largest ever response to an SRA consultation paper.
The regulator was clearly taken aback by the extent of the criticism. Chief executive Paul Philip admitted at a media briefing that he had expected to be coming to the 1 June board meeting for a decision on whether to go ahead in principle with the Solicitors Qualifying Examination (SQE). Instead, the authority will now spend more time talking to stakeholders about the detail.
By moving the decision to next year, the introduction of the SQE – if it goes ahead – will not be introduced before the academic year 2019/20. Transitional arrangements will then have to be in place before a likely cut-off date of 2026/27 for admission as a solicitor under existing rules.
Asked at the briefing how damaging the continuing uncertainty would be for those hoping to become a solicitor, SRA chair Enid Rowlands responded: ‘We’re not going to abandon any person, young or old, if they’ve started. If somebody’s embarked on a course we’ll make sure that course is still an appropriate course for the individual, provided they meet the standards. The standards are everything. But we would not dream of abandoning people halfway through [that].’
The SRA’s executive director Crispin Passmore went on to defend the authority’s approach. He said it now accepted that any new regime must have a period of pre-qualification work experience ‘at its core’, while stressing the proposals were about ‘higher standards, not reducing them in any way, shape or form’. Everyone had to be confident that those holding the title of solicitor were ‘good enough’ to do so, he went on, before adding quickly that ‘“good enough” is a very high standard indeed’.
Passmore was keen to stress support from the likes of the Law Centres Network and the Black Solicitors Network. The responses were split, he said, between 40/50 which were wholly positive and about 100 which were wholly negative. ‘In the middle,’ he continued, ‘were a large chunk of roughly another 100 who said “we are not keen on this as you have designed it at the moment but if you give us some more detail and engage with us and answer our questions, we see no reason why this can’t be a good way forward”.’
Even when pressed however, the authority would not give a generic breakdown of who fell into which camp – on the grounds that it is still analysing the responses and will publish those details with the autumn consultation.
Peter Crisp, dean and chief executive of BPP University Law School, is one of the most outspoken critics of the reforms. He accuses the authority of trying to ‘spin’ the responses to appear more favourable than they are. ‘Have you seen one law firm cheerleading for this?’ he asks.
Good question – so the Gazette asked a range of representative bodies, practitioners and legal educators which bracket they occupy.
The SRA made the ‘right call’ to delay the decision, says Allan Murray-Jones, who chairs the Law Society’s education and training committee, because there are many issues still to be resolved.
The Society falls into Passmore’s ‘middle’ camp. ‘We are fine with the idea of a centrally set skills assessment,’ says Murray-Jones, ‘but I am surprised as many as 50 responses were wholly positive. However, some of the objections were also utterly specious.’
And he stresses the importance of staying engaged with the consultation process because ‘I don’t think the SRA is going away to think whether or not there should be a SQE – it’s more about what type of exam it is going to be’.
The Junior Lawyers Division also agrees in principle with some form of centralised assessment to ensure consistency of education and training. However, chair Leanne Maund says the JLD was unimpressed with the initial proposal, which it fears could lead to a ‘lowering of standards, as well as causing further hindrances to access to the profession, to the detriment of social mobility’.
Caroline Pearce, chair of the City of London Law Society’s training committee, says it is difficult to ‘pigeon hole’ the committee’s views into the SRA’s breakdown of the responses. She adds: ‘The conclusion we reached after very careful analysis was that we could not accept the proposals as they were formulated in the consultation, as we had grave issues with many of the key elements.’
For Tonia Secker, training principal of Trowers & Hamlins, ‘the level of concern expressed by the profession and academics must make any rational regulator stop and think again. Given the comparative lack of detail on a number of the proposals, it is difficult to see how the SRA thought that any meaningful decisions could be achieved’.
BPP’s Crisp does not hold back, particularly when challenged that his criticisms are driven by self-interest. One SRA insider characterised those responding negatively as the ‘they would say that, wouldn’t they’ group.
‘I am interested in what my client firms want,’ says Crisp. ‘We have 60 law firms who send all their trainees to us exclusively and not one thinks this is a good idea. The SRA isn’t genuinely listening to the profession or legal educators.
‘It has decided this is what it wants to do. It will keep asking until it gets it, because it is only interested in making life easy for itself with the minimum regulatory requirements. That seems to me to be an abnegation of its responsibility to the profession and the public.’
The SRA argues that, by removing the prerequisite of the Legal Practice Course, students will be spared what SRA training and education director Julie Brannan calls the ‘£15,000 LPC gamble’. They will be able to take – and pay for – the skills element of the SQE at the end of a period of work experience rather than beforehand.
‘This is utterly misconceived,’ Crisp argues. ‘The LPC is a training programme that prepares people for practice. The SQE is about testing whether they can do the job. What firm will want a trainee turning up knowing less than they do now and having fewer skills?
‘I am not averse to change and I am not saying the LPC is perfect by any means. But we have had 25 years’ experience of running vocational training, which I think has become the gold standard of legal education in the world, and the SRA wants to throw that out of the window.’
Professor Andrea Nollent, Provost of the University of Law, is more conciliatory, praising the SRA for listening. But she believes ULaw’s position on the SQE is ‘pretty unshakeable’.
She did not want to say which of Passmore’s three categories ULaw came into. ‘Our response was varied across the piece,’ she says. ‘For us, consistency and rigour are vital and our key concern was about the SQE’s limitation in terms of scope in its assessment methods or topic areas.
‘We talk to many law firms about the needs of their future solicitors and the range of knowledge that should be tested, so we have concerns about whether optional subjects currently available in the LPC should be reflected in the SQE.’
For Helen Hudson, head of postgraduate professional programmes at Nottingham Law School, the SRA’s claim that there is a ‘strong case’ for the SQE is ‘rather puzzling’ in light of the consultation responses.
‘If there was a strong case and everyone was in support, then we would have been looking at implementing the proposal without further delay,’ she says.
‘Crispin Passmore’s characterisation of responses as being “negative” is simplistic, as is the reference to the negativity coming from the legal education sector. It’s clear not only from our response but also the responses from others that very balanced and thoughtful feedback has been given that cannot be classified in one word, “negative’.’’
Hudson says further delay is ‘undoubtedly damaging’ and is bound to affect the development of existing courses. Providers will not invest serious money and resources in redesigning a course that may come to an end. They are also being left in a vacuum trying to ‘second guess’ what new courses they might need to develop.
Pros and cons of a ‘super-exam’
The SQE ‘won’t be implemented until it’s ready and, if it is never ready, it will never be implemented’, the SRA’s executive director Crispin Passmore pledged earlier this month.
So can the SQE be structured to meet the authority’s objective of having a centralised assessment which ensures everyone meets a common standard at the point of qualification?
The SRA commissioned consultants AlphaPlus to provide a technical report on the assessment last year. Its report concluded that, while there were still important questions to be answered, the proposed assessment could work ‘if developed carefully’.
But the report warned: ‘There is a risk of placing too great a burden on a single instance assessment. We believe it would be advisable to keep entry requirements, in the form of a degree in a related subject, a period of work experience, or equivalent, at least in the short term.’
It also said there should not be any exemptions from any element of the assessment ‘to ensure comparability of access to the profession from all routes’.
Given the vital importance of getting the assessments right, the Gazette asked industry experts to highlight potential weaknesses.
- Modularising the assessments so that solicitors can pick and choose what assessments they do and when. The greater the number of assessment test options, the less reliable the assessment is, because students are being tested on different things at different times.
- The AlphaPlus report suggests future work-based learning could include guidance to supervisors, ensuring certain experience is provided, e-portfolios, audit mechanism and so on. But is this too ‘light touch’ or should the SRA look to the medical professions which heavily research, test and evaluate all their assessments?
- If the SRA follows the Qualified Lawyers Transfer Scheme model, pass marks will not be set arbitrarily at 50% but will ebb and flow depending on the difficulty of the assessment. This is common in medicine but alien in law.
Professor Cees van der Vleuten is an international assessment expert based at Maastricht University in the Netherlands.
‘The potential downside of national testing is its effect on the curricula,’ he says. ‘Schools feel they are in a straitjacket. However, the upside is getting a national discussion on objectives.’
The SRA initially proposed that part 1 of the SQE would test functioning legal knowledge using multiple choice questions.
These alone are not perfect, he says, ‘but the ultimate question is how much you wish to spend to make it perfect. I would keep it simple at the start and use multiple choice. Naturally, the writing of the questions should be skilfully done.’
For Professor Becky Huxley-Binns, Vice Provost Academic Enhancement at the University of Law, the SRA should align the SQE to the Framework of Higher Education Qualifications.
‘By aligning equivalent qualifications according to set standards,’ she says, ‘the framework helps higher education providers: maintain academic standards; inform international comparability of academic standards, especially in the European context; ensure international competitiveness; and facilitate student and graduate mobility.’
She continues: ‘It is both really simple and also rather complex. Most law schools validate their LPCs at level 7, which is the equivalent to a master’s degree. It seems to me that the SRA should be able to map the SQE to level 7. Other professional bodies do and the solicitors Trailblazer apprenticeship is structured up to level 7 – so why not the SQE?’
Asked how one would otherwise ensure the SQE has credibility internationally if there are no prerequisites to taking it, her answer is succinct: ‘Exactly’.
While it would have been worse to have gone ahead with the current proposal, she stresses: ‘What is now crucial is that the next consultation genuinely reflects the feedback from the first consultation and is not presented as a fait accompli.’
Set against that background, what areas must the SRA revisit?
Key for Murray-Jones is the first part of the SQE. This is designed to test functioning legal knowledge through multiple choice questions, though there are indications the SRA may not limit it to that.
‘The SRA has talked about releasing everyone’s marks,’ he says, ‘and someone there said it would “wake City firms up” to know how well people have done who haven’t been to major universities. But their recruitment decisions will have been taken long before that.
‘Talking to academics involved in marking, it will be less complex and certainly cheaper if it is just “pass” or “fail”, and I certainly want the cost, which will fall on the applicant, to be minimised. The regulator needs to know whether someone has achieved a particular standard – we don’t want it to be all about has “x got a first or a good second”.’
For Secker, what will be critical is the degree of confidence people have in the underlying education preparatory to the SQE. While the power of critical thought is not limited to those with degrees, she is concerned about having a system which allows law to be ‘crammed’ to meet an exam.
For Pearce, it is crucial to retain a graduate-level qualification, especially in the context of international recognition. That means revisiting the methodology and timing of the assessments and setting a minimum period for workplace learning.
‘We are not aware of any major jurisdiction, whether under civil law or common law, that does not require a degree to qualify as a lawyer,’ she says. ‘If, as Crispin Passmore suggests, the SQE is set at a degree-level assessment, it is not the right level, as degree-level assessment would be lower than the academic standard required to qualify at the moment, which includes postgraduate study and a training contract.’
Nottingham’s Hudson says the SQE as currently outlined won’t assess degree-level learning outcomes and that will create a less rigorous regime which risks ‘damaging the reputation of the profession academically, professionally and in the eyes of the general public’.
For Maund, it is ‘essential’ that the SRA does more work on what it intends for the ‘work placement’ element and how this will contribute to qualification.
Under the proposal, candidates must pass their SQE part 1 before they can go on to take the part 2 at the point of qualification which will test their legal skills.
‘One of the key issues in the current system is the inconsistency of training across organisations,’ she says. ‘We are concerned that some “trainees” will be held back in their SQE part 2 as organisations do not have a positive obligation to provide adequate training in order for them to pass, and, in some cases, organisations would like to take advantage of cheaper labour for longer.’
She fears that the current bottleneck in getting a training contract will just move to the point of qualification as people compete for newly qualified positions.
Other concerns include the lack of exemptions for equivalent study, so students will have dual levels of exams, and the number of times a student will be able to take all or parts of the assessments. This could affect the credibility of the exam and benefit those with deep pockets who can afford repeated resits.
For Hudson, limiting the number of times someone could take either part would be unfair because education is developmental. If candidates achieve the learning outcomes as evidenced by an appropriate assessment, then they should qualify.
‘This does, however, raise the issue of access,’ she cautions. ‘If a candidate is able to afford multiple attempts then this places them at an advantage to someone struggling financially. The other issue is that candidates are likely to struggle to gain employment if they have taken the SQE numerous times.’
Brannan promises that the autumn consultation will provide more detail about the nature of the SQE – the design of the assessment, its coverage and level of difficulty. It will also cover the number of resits a candidate might be permitted, as well as the context in which the SQE would be taken, including the position on exemptions, particularly for barristers and legal executives who already have full practice rights.
Another major concern is whether the SRA is right that its regime will be cheaper.
Brannan says it would be ‘inappropriate’ to go into detail on the likely costs of the SQE, as it would depend on the outcome of a competitive bidding process.
‘If we go ahead, we do not want to, in effect, set a target for bidders,’ she says. But she still maintains it could result in ‘some big savings’ if new, cheaper training options emerge; the costs would be spread over the two parts, giving candidates the opportunity to earn while they learn.
‘I’m pretty sceptical,’ Secker says. ‘Another question is, cheaper for whom? If pre-SQE trainees are doing work-based learning, then there is also likely to be a cost to the employer in terms of study leave and so on.’
Allied to cost is the issue of diversity. Pearce says there is a risk to having unregulated course providers, and unlimited and undefined routes to qualification. It could mean those from non-traditional backgrounds taking cheaper, less recognised courses and ending up in a legal cul-de-sac.
Passmore counters that, by having an objective test, everyone will be assessed against the same measure and that is the way to find the ‘nuggets of gold’ who are unable to follow the elite path.
‘But let’s not pretend for one minute that the SRA changing the exam process will solve the diversity issue,’ he said. ‘This goes across every single profession – across journalism, across the civil service. Ultimately the decisions of who to hire and promote rest with law firms. What we can do is our best to help and this is just one more step in doing that.’
The authority is looking at ways it can encourage more feedback, including a LinkedIn group. As Brannan says, the authority does not have a ‘monopoly on good ideas’ and it recognises that ‘we need to do more work to test whether a centralised assessment is the best approach’.
What is critical, says Secker, is that the profession and all those involved in training stay engaged with the process. ‘Otherwise,’ she warns, ‘we risk sleepwalking into a system about which we have grave reservations.’
Grania Langdon-Down is a freelance journalist