This response to the Solicitors Regulation Authority’s (SRA) Consultation on training tomorrow’s solicitors is a personal one. I am afraid this will not make a great deal of sense to those of you not familiar with the proposals, my apologies in advance.
My response concentrates on the main issue of concern that I have with the SRA’s proposals and in particular the relationship between the proposals, undergraduate legal education and hopes for an innovative, adaptable, high quality legal profession. That issue can be stated in this way: when the SRA now approaches all its regulatory policy with an emphasis on minimal/proportionate regulation as a necessary precursor to the benefits of innovation, why is the SRA making proposals which will have the effect of dramatically overregulating legal undergraduate education, with a particular likelihood of inhibiting, rather than promoting, innovation?
Put more simply again, my main problem is with the extent of the knowledge requirements, the way they will be assessed and the time at which they will be assessed. We have travelled from a modest ambition to define the skills and competencies of solicitors for 2020, to a knowledge framework which looks familiar to students of the Law Society Finals and a skills framework familiar from the Legal Practice Course (LPC). In other words, we have a solicitor’s framework defined, in broad terms, by the Law Society in the 1990s, with the unfortunate language of Part I and Part II thrown in for good measure.
My assumption is that the defining of knowledge across 13 categories and the freeing of the assessment of these categories from the LPC will broadly lead to two types of undergraduate legal education:
– Group A – a selection of the Russell Group/Golden Triangle law schools that will seek to protect traditional approaches to legal education; and,
– Group B – the remainder that will, with greater or lesser willingness, be driven by competition for students to teach as many of the knowledge categories in the Solicitors Qualifying Examination (SQE) as possible.
As a result, unless the SQE assessment proves spectacularly successful at upsetting perceptions of law school hierarchy amongst law firms, then the SQE is likely to enforce a segmentation of the legal education market which will reinforce and exacerbate existing problems within the recruitment market for trainees. As such there is a significant likelihood that the proposals will weaken not strengthen diversity within the legal profession.
The final concern about such an extensive, and backward looking, definition of knowledge requirements is that, depending on the true nature and extent of these, there is a severe risk that the SRA will define out space for substantive innovation in undergraduate legal curricula (save perhaps in those law schools least interested in thinking about how such curricula might better service students and the professions, potentially further cementing the status of Group A).
It also seems likely, on our current state of knowledge about the assessment mechanisms and the approach, that the SQE will drive a prioritisation of a limited kind of knowledge (and a particularly legal kind of knowledge) over the crucial elements that a high quality legal education could provide: understanding law in context; critical thinking; and innovation in thought about law. In particular, the more the SRA defines, the less space for innovation there is. This is a plea, and to be honest I am sufficiently worried about the SRA’s proposals to be genuinely pleading, for a dramatically more proportionate approach.
I make some more specific points and develop some of the themes below.
When should knowledge be tested?
The SRA’s focus is – as stated – on, ‘assuring consistent and comparable high quality standards at the point of admission across all pathways to qualification’. In other words, the concern is to be assured of what lawyers know once qualified, not at some point prior to that. The SQE would permit knowledge tests a significant, possibly limitless, time period prior to qualification. They will show that a solicitor candidate did, at one time, have relevant knowledge of one or more of the SRA’s key areas [1]. It will not test whether the solicitor has knowledge of the area within which they will actually be practising, unless their areas of practice map squarely onto the SRA’s knowledge area. Nor will it test the extent to which their historic knowledge has degraded by the time of the qualification. With such a poor fit between what needs to be assessed for competence, and what and when something is to be assessed, there ought to be a major rethink and slimming down of the general knowledge components required of a solicitor before the point of qualification. After all, the key thing about being a professional is that one has the knowledge relevant to one’s area of practice and keeps that knowledge up to date. The knowledge competences are strangely divorced from this key requirement.
Relatedly, the knowledge elements are very wide, and often only tangentially or minimally related to the practice areas of many solicitors. The list of subjects can fairly be characterised as some fantasy of a generalist solicitor or a backward looking shopping list of subjects that are have generally been taught at degree or LPC level. The knowledge requirements of most practitioners are almost certainly much more specialised than this list.
Similarly superficial and irrelevant generalism may be less rewarding for students too. We need innovation in the content of law degrees as much as we need innovation in delivery and assessment. I am not seeing innovatory possibility in a system which requires every would-be solicitor to study wills and probate, and taxation, and the two litigations, for instance. Most solicitors function reasonably well having forgotten (I’d wager) most of the property and trusts law they were taught even a few years ago. And to those that say, ah yes but you never know when a trusts point will come up (even though the answer will often be, never), it is just as easy to think of other subjects where this is as or more likely. Intellectual property and employment law are increasingly central to a great deal of business activity insofar as it involves lawyers and may thus more generally relevant than several of the current crop of requirements. Sensibly defining knowledge requirements on a subject by subject basis as the SRA has done is a fool’s errand: it is way too over and under-inclusive to be useful.
With the impossibility of sensibly defining a wide knowledge base of this kind for solicitors, comes the freedom to demand a narrower more sensible base. It might also be observed that it concentrate on what is best assessed early, and which might be seen as core to the ability of young lawyers to develop are more translatable knowledge and skills – this might include some substantive building blocks (such a proper understanding of precedent and the legal system, EU/UK/HR law, and professional ethics) but concentrate more on the critical reasoning, research and communication skills which enable a young lawyer to research and work with law with confidence and skill. An SRA concerned about inconsistency [2] can similarly investigate those concerns with much smaller and less inhibiting influence on legal education.
A related problem will be how will an SRA defined curricula develop? A top-down, knowledge dominated curriculum, drafted in committee is not obviously likely to drive up standards and adapt quickly, or with imagination, to an increasingly global, technology influenced legal services market.
Can the SQE assist with diversity?
Reduced cost is one way in which an SQE may improve diversity. The potential costs of the SQE itself, and the secondary market for crammers which will quickly evolve, may be offset by potential reductions in the costs of an LPC type course or courses. It is difficult to predict, therefore, whether reduced costs will really come to pass.
The potential benefits, from a diversity and quality perspective, of better benchmarking of university and candidate quality candidates through national testing is also interesting. A key to the success of this is preventing the segmentation of the education and recruitment market referred to above. For diversity to be significantly improved, firms would need to have an early (end of first year undergraduate) and robust indication of a candidates aptitude for law which was a stronger signal of their abilities than, in particular, A-level grades or ‘getting into a good university’. Or, over time, firms would have to be able to see that identifiably good students from the elite wing were in fact not better than identifiably good students from the non-elite wing. If a firm could see that, say, a non-Russell Group University had a good crop of high performers on the SQE, they might be more inclined to shift their recruitment from their traditional universities towards that non-Russell Group University if the SQE enables them to make this distinction with confidence.
It is an appealing idea but it is doubtful that this can be achieved. This is partly because, on my reading of the evidence in your consultation paper, the difficulties of extending the SQE beyond a pass fail distinction mean that the test will be unlikely to distinguish – let alone distinguish robustly – between the merely good student and the good or excellent student that early recruiters of trainees are looking for. It may also not do so early enough (and of course the earlier it is the more it divorces knowledge requirements further the point of qualification and from graduateness).
It is my judgement that early recruiters of trainee solicitors (which is the area where the biggest diversity problems are) are not going to be swayed towards recruiting from a more diverse set of candidates by the SQE. Even if a league table of pass rates was to develop, the more traditionally prestigious law schools would quickly adapt to the SQE and ensure sufficient uniformity of achievement to not meaningfully advance on diversity grounds. With a relatively flat range of performance in league tables, firms will be very likely to maintain their traditional recruitment patterns.
The inconsistency problem
A second way in which the SRA needs to think about proportionality is in relation to the way it responds to concerns about different pass levels on the LPC, the potential differences in assessment regimes at the undergraduate level, and a lack of knowledge about the quality of the ‘signing off’ system for qualification (where there is no discussion of the historic arrangements for training contract monitoring).
In so far as the SRA has evidence of competence problems, the SRA is much more hazy about the educational deficits that cause them. In fact it has no robust evidence, at least that I have seen, of the ways in which educational and training process is linked to or can be improved sufficiently to improve competence. This is a strange basis for deregulating the LPC and super-regulating LLBs. Testing a wide variety of sometimes irrelevant legal knowledge three years or more before practice is not an obviously strong candidate for significantly improving the competence of lawyers. Still less is it proportionate. The acid test of the need for SRA reforms is what is likely to work? The SRA does not know and so relies instead on solving another problem (consistency and comparability) which they do not in fact have the evidence to establish and diagnose with precision.
Consistency and comparability is very important, but if legal education is to flourish and innovate there has to be room for variation in what is taught. The SQE poses a major threat to this, and this is doubly true without the SRA being able to diagnose a) whether, let alone how, the extent and nature of a competence problem is related to any inconsistency in assessment standards; and b) how differently regulated systems of legal education and qualification will be likely to fix the undiagnosed problem. Moreover the SRA puts enormous faith in the quality of, as yet, undeveloped tests to deliver baseline indicators of competence. In this way the SRA has landed on the idea that it can and should prescribe and regulate the substance but should deregulate the process of what is taught in the potentially forlorn hope that this will reduce costs and without being sure yet that their competence tests will be anywhere near good enough. For undergraduates this substance concentrates on a computer assessed test of knowledge, when skills and competencies might be more core and more appropriate for a graduate level qualification.
With evidence of the linkages between competence and training so absent, as the SRA’s consultants acknowledge, [3] I would have thought the place to start is with assessing competence at the point of qualification and work backwards, establishing what is going wrong and then tracing the causes back to targeted solutions. Similarly, the SQE would be much more wisely brought in incrementally, allowing all the stakeholders, but particularly the SRA, to develop its understanding and improve its implementation. It follows that there is a great deal of uncertainty and vulnerability in the proposals which would benefit from a significantly more measured approach.
The reserved services problem
As I understand it, one of the reasons for the rather wide set of statements of knowledge which solicitors would be required to have relates to reserved activities. This seems to be another area where a more proportionate approach can be imagined and one that fits more with the increased flexibility of the CPD regime. It seems to me much more reasonable for the SRA to specify knowledge requirements that a solicitor requires to be able to practice in a reserved area and requires that, prior to practising in that reserved area, the solicitor has to pass the relevant knowledge and – if relevant – skills tests. If a solicitor does not practice in a reserved area they do not need the knowledge and skills to do so. If they do practice, they need to pass the relevant assessments, perhaps with the ability to work under supervision until they reach that point as any paralegal would be able to do. This would significantly reduce the extent of the SQE knowledge requirements, reduce costs and make (some modest) diversity gains more likely. It would be more flexible, and permit more innovation. And it would ensure training in the reserved areas was relevant and proximate to practice. It need not even be necessary to have a reserved services licensing scheme – it would be relatively easy for the SRA, the Legal Ombudsman and Insurers to pick up complaints where a solicitor is practising in an area where they need a set of reserved legal services knowledge and skills assessments. Ex post regulation here is probably sufficient.
Further inflexibilities
There is a suggestion that skills assessments be mainly confined to reserved areas, and that contexts should include transactional and litigation contexts. This is another unnecessary inflexibility. Why focus on this distinction? What is the bewitching power of transaction vs litigation over the profession’s consciousness? Why not, for example, require that lawyers have to have worked for claimants and defendants – a more illuminating difference than transactional vs litigation work in my opinion – or businesses and individuals?[4] The transaction litigation divide seems to me to be focusing on surface detail rather than looking carefully at the underlying skills or competences that are really necessary to practice as a solicitor. If one follows the logic of the SRA position and asks, what are the uniquely transactional competences required in reserved activities, the importance of transactional skills starts to look rather suspiciously small.
Richard Moorhead is professor of law and professional ethics at UCL Faculty of Laws and director of the Centre for Ethics and Law. He blogs at Lawyer Watch. Follow Richard on Twitter.
Read more in the analysis piece: Comment: Big picture, big mess – familiar turf wars as the legal education debate drags on.
[1] Depending on how the knowledge areas are clustered together.
[2] Although it should be noted the SRA is not able to link competence problems to evidence of inconsistency in degree and LPC awards.
[3] The SRA’s economic impact assessment states, for example, “comprehensive evidence does not exist that links low quality advice to the qualification requirements.”
[4] I am not genuinely suggesting these things as requirements, merely that alternative distinctions might be more powerful in training and competence terms than the transaction/litigation one.