Of the many indicators of upcoming changes to the legal profession, liberalisation of legal services initiated by the SRA is perhaps the most demonstrative one. Since at least 2013, the body has been consistently implementing initiatives aimed at simplifying regulations in the legal profession and removing those not in the public interest. In 2015, the SRA came up with the idea of introducing the Solicitors Qualification Examination (SQE) to replace the traditional route of qualifying as a solicitor.
It is common knowledge that change is traditionally met with resistance, and there has predictably been considerable opposition to the SQE among legal professionals. We express our understanding of the apprehension the stakeholders may have due to upcoming changes which will have a substantial impact on the legal education sector, and might also result in increased competition at the UK employment market.
However, we feel compelled to join in the discussion and defend the introduction of the SQE and its design. We have great respect for all the opinions expressed, but would like to invite our potential opponents to view the reform from a different perspective.
Who we are and why it matters
We are OSCEsmart – a training provider for the existing UK bar exam known as Qualified Lawyer Transfer Scheme (QLTS) which is an alternative route for foreign qualified lawyers to qualify in England and Wales. The structure of our course is determined by the structure of the QLTS, and the latter consists of two parts – QLTS MCT (Multiple Choice Test, equivalent to SQE1) and QLTS OSCE (Objective Structured Clinical Examination based on oral and written simulations, equivalent to SQE2). Focusing on the QLTS OSCE, OSCEsmart preparation course offers QLTS candidates individual training via mock stations.
One of the authors of this article founded OSCEsmart upon completion of LPC and eventually qualifying via the QLTS. This educational and professional experience opens a unique perspective on both routes, save for the QLTS MCT from which LPC graduates are exempt. It also allows to draw certain parallels between the QLTS OSCE and the SQE.
Arguments against the SQE
One of the most recent expressions of opposition to the SQE in the legal profession can be found in an open letter to Mr Bob Neill MP, Chair, Justice Committee, from Amy Clowrey, Chair of the Junior Lawyers Division (JLD), of 21 June 2019. The letter requests an inquiry into the Legal Services Board’s decision to approve the Solicitors Regulation Authority’s application for the introduction of the Solicitors Qualifying Examination.
The introduction of the SQE is criticised by the JLD as being contrary to the statutory criteria set out in the Legal Services Act 2007, in particular it is pointed out that the SQE will:
- be contrary to the public interest;
- not be in the interest of consumers;
- result in lower professional standards.
Apparently, the risks above are listed in the order imposed by the regulatory objectives in the Legal Services Act 2007, where according to the Legal Services Board (LSB) they are not set out hierarchically. So, of the three considerations above, the most meaningful and dominant one seems the risk of decreased professional standards as to a certain extent it governs the two former risks.
The present paper will thus attempt to address the question of whether the SQE can pose any real danger to professional standards.
The JLD’s concern for alleged risks to professional standards rests on three major points:
…although the JLD is supportive of a centralised assessment (as the SQE will provide), it has significant concerns about other elements such as the removal of the requirement to study academic law substantively, assessment by method of multiple-choice question (MCQ) examination, training requiring only ‘the opportunity’ to develop the necessary competencies and sign-off being possible by a newly qualified solicitor who may not ever have met the trainee (our emphasis added).
Arguments in favour of the SQE
In our opinion, the analysis of a step of such scale should be more than purely declarative. It should introduce specific arguments as per each of the above points, so that those may be challenged or at least debated. Therefore, the present paper will address each of the considerations above.
1. The removal of the requirement to study academic law substantively
The SQE indeed brings to the end the Qualifying Law Degree, which means that there will be no formal requirement of holding a law degree for domestic candidates, while it is unclear and unlikely that the same will apply to foreigners, who as per now are required to be qualified within one of the recognised jurisdictions in order to be eligible for QLTS. If this situation persists, it can potentially cause the problem of how to separate domestic candidates from foreigners in order to identify which requirement will apply to a particular candidate. If the differentiation criterion is the UK residence and/or a degree granted by a UK educational institution, this will encourage foreign students to enrol in LLM programmes offered by UK universities.
In the modern world of technology and digitisation, traditional educational institutions with tangible premises and facilities are becoming an unnecessary expense. It is evident that education in general as a phenomenon is moving online. Furthermore, technology like ‘smart contracts’ is obviously taking our legal jobs. In order to be competitive on the market, a solicitor should possess extra knowledge and advanced skills, like a foreign language for reaching out to international customers, digital engineering for working on software development contracts/ disputes, or basic medical knowledge for more effective and competitive management of PI claims. It is entirely not a bad idea to encourage people with non-law degrees to move to law, and one of the options to do so will be by way of studying law via online facilities while obtaining real practical training in a law firm.
I think that people will continue to take something like a GDL because the profession really likes recruiting non-law graduates; I’m a non-law graduate myself, and when I talk to law firms, I see no sense that they may not wish to recruit from that particular pool of people.
Director of Education and Training, SRA, Legally Pod: The Law Podcast
What really matters is knowledge, not a degree. It is clear that the existing LPC/training contract regime does not on its own guarantee good legal knowledge or the required standards. If the future exam is properly developed and implemented, each candidate capable of passing it should possess everything it takes to qualify as a competent solicitor. Students will still have a possibility to obtain a law degree, and this should presumably help them pass the SQE. On the other hand, someone who has learned the law via other routes and accumulated enough knowledge and skills to pass the SQE will also be given an opportunity to compete with others for becoming a solicitor of England and Wales. So, what really matters is the quality of assessment.
2. Assessment by method of multiple-choice question (MCQ) examination
Just to make it clear, we are not offering preparation for the multiple-choice part of the QLTS. However, let’s conduct a brief analysis of this method.
When done well, MCQs prove to be a fair and accurate assessment tool with two major advantages. Firstly, they are a relatively economic method of assessment which is easy to administer and mark. Secondly, they are convenient for testing a large pool of subjects – a virtually impossible task if assessment is made by means of open questions and essays.
So, the biggest issue here is to prepare well-drafted MCQs which meet all the methodological requirements:
A test is valid if it can accurately measure a particular cognitive ability. Reliability refers to consistency of test results between two measurements. An objective test is free from personal error (i) in marking, on the part of the assessor, and (ii) in interpretation of test items, on the testee’s part. And finally, the usability of a test is determined by practical considerations – those of ease in preparation, administration, scoring and interpretation of test scores, as well as appropriateness of the time limit.
As for critical remarks against multiple-choice testing, they usually rest on its tendency to test memory – hence the exasperation that students may prepare and pass it by simply memorising Qs and As given by training providers, instead of developing in-depth legal knowledge and cognitive skills.
This will depend not only on the quality of multiple-choice questions designed for the SQE, but also on their variety and safety:
- how big Kaplan’s question bank for the exam will be and how often it will be updated;
- if the questions will be repeated from one exam to another and to what extent if at all;
- how well the question bank will be protected against data leaks.
In any case, the above risks could be considerably higher, should MCQs be the only method of assessment for the SQE. Instead, it is only the first stage of the exam which will simply help to sift weaker candidates and steer stronger ones for the SQE2.
This second stage is entirely different and tests both functional and practical legal knowledge together with legal and non-legal skills by means of simulations. Based on our personal experience of passing the QLTS OSCE – which is a prototype of the SQE2, it is a superior exam which requires a lot more than LPC training and testing. The OSCE exam and the preparation it requires blend into a single learning experience which surely assists aspiring solicitors to reach required standards.
3. Training requiring only ‘the opportunity’ to develop necessary competencies
This issue concerns two main considerations –
- what is the SQE2,
- what is qualifying legal experience (QLE).
The SQE2 is defined as a practical legal skills assessment, but its prototype QLTS OSCE also tests the substantive law and functional legal knowledge by means of simulating a solicitor’s actual work in a law firm via conducting client interviews with further matter/case analysis, making submissions with a court or presenting legal advice, drafting different legal documents and letters as per supervisors’ instructions; conducting legal research with further application of its results to a given factual scenario.
So, the SQE2 on its own will be assessing the aspiring solicitors’ state of training for the profession. Law firms will be able to train their lawyers the same way as they do now or whatever way they prefer, but without extra external regulation. The only external regulator will be the SQE2, and its results may be considered an important independent evaluation for law firms:
It is intended that in most cases the SQE2 will be taken and the results given before the end of the qualifying work experience period. This will enable employers to make an informed decision about which candidates they wish to keep on after they finish their qualifying work experience.
Now as for compulsory practical training, it will not vanish after the introduction of the SQE. The notion of ‘training contract’ that in 2014 the SRA started calling ‘period of recognised training’ will now be substituted by ‘qualifying legal experience’ of the same length. The only difference with the traditional training contract will be deregulation of its required elements. Here is what is known at this point:
- There will be no special scheme for someone to be registered as a trainee solicitor with the SRA and a firm which is licensed to provide training. However, the QLE should still be supervised by a solicitor admitted to the Roll. The training may take place in a broad variety of establishments, and the providers may be employers, educational institutions or other organisations. It is possible to have non-standard working patterns in which case the length of the training may be independently evaluated and extended.
- The candidates will no longer need to work in a specific number of different areas, nor will there be any requirement for contentious and non-contentious work. It indeed may be considered a loophole if aspiring solicitors would be able to choose for the SQE2 only two areas of law instead of being tested in all of them.
- There will be a maximum of four placements for qualifying work. It seems a positive innovation, because an aspiring solicitor will be more flexible and less dependent on the provider. Furthermore, candidates may start gaining experience as they progress through their education; and it will be in the interests of the candidates to obtain better training in order to pass the SQE and become more employable. For best training experience, they may choose to stay with one provider securing long-term relationships, or to swap providers up to four times. It seems equally beneficial for the training provider – who will not be bound by a training contract.
- QLE may be obtained before, during or after the SQE. So, many candidates who have been in practice for a while though without obtaining or completing a training contract, will now be able to go through both stages and qualify – provided that they pass the SQE.
So, legal training as a whole will not become deregulated – the regulation will simply offer more flexibility and invite contribution from the market. That can finally provide solution to the problem of fierce competition in obtaining a training contract: according to recent (2019) statistics, with the number of LPC students by far exceeding the number of training contracts available in the UK, you have ‘a one in six chance of securing your place.’ The SQE can actually become an effective solution for those LPC graduates and paralegals who have not secured a training contract.
Based on that, we fully agree with Julie Brannan’s key argument in favour of the SQE:
We absolutely want to make sure that the most talented people can become solicitors. It’s not right that there are barriers like cost or access to training contracts, which mean that people who have the talent and have the ability can’t get through. We want the profession to be as representative of its client base as possible.
So once again, resistance to change is natural, but it only occurs when people perceive it as a threat. It is important to realise however that understanding and embracing change is the foundation of growing – after all, there is no progress without change. The UK is surely becoming the birthplace of a unique culture blending age old traditions and most progressive ideas. In such surroundings, the SQE has all the chances of becoming the most advanced bar exam worldwide.