Kathryn McCann assesses the regulator’s controversial new route to qualification
In April, the Solicitors Regulation Authority (SRA) announced that its planned Solicitors Qualifying Examination (SQE), also known as ‘the super-exam’, would be in place by 2020 following two formal consultations. This is despite garnering considerable, but not unexpected, criticism from the profession and education providers alike.
Concerns about the single, centrally-set exam range from alarm over the draft syllabus, which the City of London Law Society (CLLS) has said is significantly less relevant for many solicitors qualifying today or in the future, to uncertainty over much of the detail of the changes, including the ultimate cost, which is as yet undetermined by the SRA.
‘It is a bit like Brexit,’ says Peter Crisp, dean and chief executive of BPP Law School. ‘Nobody thinks it is a good idea, but we are trying to make the best of it. There is a gap between what the profession expects and wants and what the SRA wants. What the SRA wants is pretty low down – the bare minimum. The profession demands a great deal more and that is the problem.’
However, he caveats: ‘We don’t really know the detail. The SRA hasn’t announced anything very much. We have no confirmed syllabus, no confirmed skillset and so on.’
The SRA insists that the SQE will provide a ‘more reliable and rigorous test of competence than is possible at present’ and will ‘introduce transparency and competitive pressures to drive up standards and reduce cost’, while ensuring all new solicitors are assessed to the same standard.
The SQE, which will replace the existing requirements for trainee solicitors to take the Legal Practice Course (LPC) or the Graduate Diploma in Law for non-law graduates by combining both into the qualification, is split into two parts: SQE stage one and SQE stage two. The first stage will test a candidate’s ability to use and apply legal knowledge through six assessments, while the second will test legal skills through ten practical assessments.
In addition to passing both stages of the SQE, new solicitors will need to hold a degree, apprenticeship or equivalent (which could include work experience). They will also need to have taken a substantial period of workplace training, likely to be 24 months. Much of the resistance over the new route surrounds the quality of the end qualification – which is also designed to clear the ‘LPC bottleneck’ – where aspiring solicitors pay up to £15,000 for the LPC with no guarantee of a training contract.
‘Bringing the whole system under the SRA’s control is to be applauded. At the minute it is uncontrolled, and you or I could set up a law school and set up our own exams.’
Ed Sparrow, CLLS
‘The SRA is planning that some universities will wrap the SQE one into their law degrees,’ says Ed Sparrow (pictured), chair of the CLLS. ‘Bringing the whole of the examination system under the control of the SRA is to be applauded. At the minute it is decentralised and uncontrolled, and you or I could set up a law school and set up our own exams. The SRA has said it is keen to make sure the result is high quality. If they can achieve that, people will be happy.’
Dispute resolution
It remains to be seen whether the natural tension that exists between the SRA and the profession will act as a barrier to any future consultation, particularly when many lawyers are against any radical change to legal training.
‘We have had two formal consultations from the SRA and this is the second one,’ says Caroline Pearce, director of learning at Cleary Gottlieb Steen & Hamilton and chair of the training committee at the CLLS.
‘There was also the Legal Education and Training Review [in 2013] and the conclusion from that was that there were improvements that could be made to qualification requirements for solicitors but that it wasn’t bad. When the SRA started this formal consultation, there was a lot of surprise that it was being so radical. We are trying very hard to continue the dialogue and influence the SRA’s thinking.’
Radical or not, the SRA’s argument is that with the legal profession changing rapidly as it responds to new pressures, new business models, new markets and new technology, both at home and abroad, the old route to qualification is no longer fit for purpose.
‘Originally the SRA appeared to have two driving objectives,’ adds Pearce. ‘One was this idea of having a centralised assessment and a single standard, and the second one was social mobility. But the social mobility aspect seems to have slipped down the ladder. It has commissioned a report on diversity issues, but it hasn’t done a formal equality, diversity and inclusion assessment, for example. It doesn’t consider that it is its role as a regulator to necessarily put social mobility as one of its objectives, but to the extent that it does improve social mobility, that is an extra advantage.’
However, for Ray Berg, UK managing partner at Osborne Clarke, the potential broader reach of the new qualification can only be a good thing for law firms and their clients, and is likely to have a direct impact on social mobility.
‘I am positive about it, absolutely. It allows a much broader range of entry points, a broader range of people. The important thing for all of it is to make sure the key skills are developed – analytical skills, giving advice to clients. A law degree of itself doesn’t necessarily give you that. I imagine every lawyer that we have in ten years will have a degree of IT competency, for example, the ability to code software.’
‘Law firms are bloody miles behind. The world is changing around them and the people at the coalface don’t see that.’
Nigel Savage, former University of Law chief executive
‘Law firms are bloody miles behind,’ says Nigel Savage, former chief executive of the University of Law and now a non-executive director at Fletchers Solicitors. ‘Even the better ones. The world is changing around them and some managing and senior partners tend to see that. The people at the coalface don’t tend to see it and that is the problem the SRA have got. The new route creates immense opportunities for firms to take a look at more flexible entry points.’
Accepting the inevitable
There is no doubt that one aim of the SRA’s overhaul of the existing framework is to encourage flexibility in the profession and open up the potential pool of solicitors. In a blog written by SRA policy associate Liz Walters, she argues that the SRA wants to ‘ensure that the most talented people from any background can become solicitors’, and that ‘a diverse and representative profession will help foster
high-quality services, and improve legal services for people from a range of backgrounds’. She suggests that the SQE encourages this by virtue of the fact that all candidates would sit the same assessment, levelling the playing field for those who qualified through ‘attending less fashionable universities or through new routes, like apprenticeships’.
However, for Pearce, the centralised exam creates a risk of inequality through the possibility of some students taking top-up courses if the qualification is seen as inadequate by law firms.
‘If you are going to remove some of what we think is core law – the City subjects, for example, or family law – if those are not part of the SRA exam, if you want to practise in those areas you will have to go on independent courses and that will create the inequalities the SRA are trying to eliminate.’
Pearce also draws attention to the multiple choice aspects of the SQE, which the CLLS believes is ‘a matter of great concern’.
Crisp goes a step further, suggesting that the SRA has in effect conceded that the reform will not widen access to the profession: ‘Tucked away in the SRA’s Q&A section on this is a paragraph which in my view blows away the SRA’s assertion that this new route will widen access to the profession. It is advising those who pass the SQE not to apply to go on the roll until they have secured an NQ position. It is admitting that law firms will still control the numbers entering the roll and they are just pushing that bottleneck back to NQ from the beginning of the training contract. It will do nothing to assist widening access whatsoever and is probably detrimental.
‘What it is really saying is that any person who hopes to be a solicitor who tries to go against this and enters themselves on the roll anyway will find themselves unemployable. So why are we having this disruption? What is it doing it for, if not to widen access?’
Additionally, there are concerns over the new work-based learning requirements, which negate the need for training contracts and provide a more liberal view on work experience.
‘There is the ability to do a mosaic of experiences that may satisfy the SRA’s requirements to qualify as a solicitor, but it will not enable you to get a job,’ says Crisp. ‘It will mislead a whole generation of people that if you just do as the SRA says, you will get a job in the profession. You may get a job as a paralegal, but you won’t get a job as a solicitor because the standards the profession are demanding are a lot higher. It could absolutely create a two-tier system.’
Under the new route to qualification, a two-tier system looks inevitable. And arguably it already exists with the introduction of apprenticeship routes to solicitor. The challenge then is for the SRA and law firms to accept this and work in tandem to create a quality-controlled, modern two-tier system, which works well for firms and aspiring solicitors alike.
Concludes Savage: ‘Graduates will have a choice: to be the next Nigel Boardman where they will go into a fast track, what we now call a training contract. Or someone else might say: “I don’t want to do that, I want to be in technology solutions or do stuff in Manchester or Belfast.” Law firms are not ready, but that is the direction of travel. They can do it gradually and that is the opportunity the SRA creates – that flexibility. You can create space in terms of diversity and instead of diversity being an add-on like it is now, it becomes integrated into the entire recruitment strategy of the firm.’
Achieving useful reform in the complex legal education sector – which for all the complaints it attracts is widely felt to have improved standards in recent years – would be hard enough with the UK’s largest law firms on board. Without their support, perhaps only the expanding band of New Law entrants can galvanise the SRA’s envisaged new training routes.
kathryn.mccann@legalease.co.uk