On 7 December the SRA released its consultation on Assessing Competence. It is about assessing the competence of people who are about to qualify as solicitors: the assessment model that the SRA would like to implement is a new centrally set examination – the Solicitors Qualifying Examination (SQE).
SQE is a suite of assessments to be taken in two parts. Part 1 consists of computer-based objective testing of ‘functioning legal knowledge’ in the 12 subjects listed in the SRA’s Competence Statement: ethics, professional conduct and regulation; wills and administration of estates; business law and practice (including taxation); property law; tort; criminal law and evidence; criminal litigation; civil litigation; contract law; trusts and equitable wrongs; constitutional law, EU law and human rights; and the legal system of England and Wales.
Part 2 cannot be taken until the candidate has passed all the Part 1 assessments.
Part 2 consists of two assessments in each of the six practical legal skills of interviewing and advising; advocacy and oral presentation; negotiation; writing; drafting; and legal research. The Part 2 assessments must be taken within three of five specified subject areas. Every assessment in parts 1 and 2 is modularised, so each assessment can be taken separately. There is no limit on the number of attempts a candidate can take to pass any assessment.
Everyone who wants to become a solicitor will be required to pass SQE. The SRA proposes that no one should be exempt from sitting any part of SQE. University graduates who have passed degree-level examinations in the functioning legal knowledge subjects would have to pass the SQE assessments too. So would qualified lawyers, such as chartered legal executives, overseas lawyers and barristers who wish to cross-qualify, as well as legal apprentices.
However, there will be no prescribed route to qualification. In the spirit of outcomes-focused regulation, all pathways to qualification will have equal value. There will be no requirement for a qualifying law degree (QLD), or university degree and GDL, or an LPC. Candidates could still take these courses but those who avoid tuition fees could qualify too. The SRA states that the SQE will only add to the cost of qualifying if candidates continue to take the LPC. It believes that more excellent people from disadvantaged backgrounds will qualify, raising the standard of legal work and thriving within an increasingly diverse profession.
If that sounds too good to be true, that’s because it is. The Legal Education and Training Review found that the current system of legal education and training is fundamentally sound. The SRA disagrees. It is concerned about the quality of legal services and the consistency of rigour and marking on the QLD and LPC, it wishes to widen access to the profession and it is concerned by the cost of qualifying. The SQE does not resolve any of these issues. Like many radical solutions to non-existent problems, it is misconceived.
In relation to the quality of legal services, the SRA notes that in each of the last four years, 10% of firms paid a negligence claim. But there is no evidence that the firms had been negligent or, even if they were, that newly qualified solicitors had been negligent. The SRA also relies on the Compensation Fund having paid £23.8m to clients in 2014. But that is not evidence of bad work. The Compensation Fund compensates clients who have suffered loss from the criminal acts of solicitors; insurance covers the incompetent. There is no evidence that the current system produces incompetent newly qualified solicitors and criminals.
With regard to the consistency of marking, it would be disturbing if there was no variance in the pass rates, percentage of first-class or 2:1 degrees or LPC diplomas with distinction or commendation awarded by universities. Some universities attract better students than others; similarly, some universities run bespoke LPCs which prepare students for working in the large commercial firms which are paying for their courses, while other universities’ LPC students are without training contracts and may have lower classes of degree. One would expect universities to have differing results profiles so this is no cause for alarm. The SRA has produced no evidence of any other cause of inconsistency in results.
As far as the centralised assessments are concerned, computer-based multiple-choice questions, true/false questions and assertion/reason questions are difficult to set, require a lot of time to write and are therefore costly to produce. Second, since the questions must have a definite correct answer, they must be relatively uncontroversial. But in practice there are not always definite right and wrong answers to problems so the questions are likely to be narrow in scope and unrealistic in context.
Thirdly, most universities, fearful of the league tables that the SRA is contemplating, will teach to the assessment instead of teaching to prepare students for practice, which is what the LPC does. Students’ learning will suffer.
Although there is no requirement for a solicitor to have a university degree, almost everyone who has qualified since 1980 has one. Increasingly other occupations such as nurses and social workers require one, and there is even talk of degrees for policemen. It is odd that the SRA wishes to remove a requirement for tertiary education (the LPC) for solicitors when the trend is for other occupations to insist on one. One also fears for the profession’s international reputation.
How can one equate the rigour of qualifying as a solicitor with qualifying as an American lawyer when the only academic requirement for solicitors is that they have an unlimited number of chances to pass 12 multiple-choice, question-based knowledge tests and 12 skills tests while the American is required to have an undergraduate degree and a law degree?
There is a structure to the process of qualifying as a solicitor. The QLD (or degree plus GDL) followed by LPC and PRT (period of recognised training) is a simple and clear route. Aspiring solicitors know what they must do to qualify and the order in which to do it. Removing this structure and replacing it with the chaos of multiple pathways, leaving it to the student to decide which route to take subject to the proviso that s/he should pass SQE Part 1 assessments before attempting SQE Part 2 is confusing and irresponsible.
The SRA says that once the SQE is established the market will correct itself and students will be able to make the best choice as to how to qualify. But everyone knows what happens when markets correct themselves. There are a lot of lost jobs and ruined lives and a lot of money is wasted. Shouldn’t good regulation prevent these outcomes?
The SQE is an additional layer of assessment. The rationale for denying exemptions from any Part 1 assessments is that granting exemptions would limit the SRA’s ability to ensure comparable standards between different pathways. But that’s a dubious benefit and it’s awfully wasteful, inefficient and mean. Why should students and qualified lawyers who have passed an assessment in contract law be required to sit another? Shouldn’t they be given credit for what they’ve done? If the SRA wants to inflict unnecessary assessments on students so it can gather better statistics on entry into the profession, its priorities are seriously wrong.
This leads me to cost. The SQE has not been costed by the SRA but it won’t be cheap. No one interviewed by the Gazette for its article on SQE thinks it will be cheaper than the LPC and PSC. The SQE is modelled on the QLTS, the test for overseas lawyers. The fee for the QLTS assessment is around £5,000. The SQE has more assessments than the QLTS so it will be more expensive. A number of institutions have created courses to help people to pass the QLTS. These cost a few thousand more.
The chair of the Law Society’s education and training committee says only an idiot would take the SQE assessments without taking a preparatory course. So this is a further cost. Since such courses are not validated by the SRA, as the LPC is, they and the providers will be unregulated. How desirable is that?
Who will pay for it? It is likely that candidates will have to pay for the Part 1 assessments as they can take them contemporaneously with their degree exams (although it seems that Part 1 assessments will be pitched at a higher level). After graduating, they can start their PRT without taking a LPC to cut cost. Assuming they have passed Part 1 they can take the Part 2 skills assessments during the PRT. But this will cause problems for firms.
Part 2 is intrusive: there are 12 skills assessments plus the preparatory courses to accommodate within the PRT. Who will have to pay for Part 2? The skills assessments on the QLTS are much more expensive than the computer-based knowledge tests and substantially more expensive than the PSC which firms currently pay for. If the SRA wishes to widen access to the profession for disadvantaged people I can’t see them expecting students to pay for the Part 2 assessments. But would firms pay? Would they hire trainees who had not passed their Part 2 assessments?
The anecdotal evidence I have received from practitioners is that paralegals who have taken the LPC are more useful than those who haven’t. This coincides with the opinion of most LPC teachers that students are much better at applying knowledge to given sets of facts at the end of the course than they were at the beginning. It is fair to surmise that LPC graduates are more useful than people of equivalent ability who haven’t taken the course.
But if candidates choose to cut costs by boycotting the LPC they will be less useful to their firms when they start their PRT than current new trainees. It will take longer before they become useful to their firms. Will the firms be prepared to underwrite this and pay for the Part 2 assessments too? No. They will hire qualified staff who have passed the SQE instead. Fewer trainees will be hired if this new scheme is implemented.
If fewer trainees are hired, fewer will qualify as solicitors. Since there is no evidence that the current education and training system is responsible for depriving people from disadvantaged backgrounds from qualifying and the SQE will reduce the numbers who qualify, the SQE will deprive more people from disadvantaged backgrounds from qualifying.
Further, the SQE will not improve the quality of legal services or improve the consistency of rigour and marking at QLD and LPC level and it will cost more than the current system. The SQE fails to resolve every issue which persuaded the SRA to recommend it.
I urge you to read the consultation and respond to it. The deadline for responses is 4 March.
David Dixon is a senior lecturer at Cardiff Law School