Solicitors Qualifying Examination

The implications of the SQE for legal education

The implications of the SQE for legal education

S H Bailey

Professor of Public Law, University of Nottingham; Chair, SLS Legal Education Sub-Committee

Presentation to plenary session at the SLS Conference, Durham, 1 9 21

1. I have been asked to say a few words about the implications of the new Solicitors Qualifying Examination for legal education.

2. As I am sure most if not all of you will know, the new SQE forms a major part a completely remodelled route to qualification as a solicitor in England and Wales. The standard route that it is replacing includes: (1) possession of a Qualifying Law Degree recognised by the Solicitors’ Regulation Authority or a non-law degree plus a Graduate Diploma in Law also recognised by the SRA; (2) passing the Legal Practice Course studied with one of the providers recognised by the SRA; (3) work experience under a Training Contract, the content of which was also regulated by the SRA.

3. The new route is summarised by the SRA as follows:1

“The Solicitors Qualifying Examination (SQE) is a single, rigorous assessment for all aspiring solicitors. From 1 September 2021 to qualify you will need to:

(1) have a degree in any subject or a qualification or experience that is equivalent to a degree, such as a solicitor apprenticeship which combines on the job experience and training:

(2) pass both stages of the SQE assessment – SQE1 focuses on legal knowledge and SQE2 on practical legal skills and knowledge;

(3) two years’ full-time (or equivalent) qualifying work experience’

(4) pass our character and suitability requirements.”

SQE1 will comprise two closed book assessments, each of 180 questions. Each assessment takes place on a separate day. Each day is split into two sessions of 2 hours 33 minutes with 90 questions in each session. SQE Practical Legal Skills Assessments will take place over five days and involve a combination of written and oral tasks.2 Academic lawyers and others have had serious reservations about the project.3 The Law Subject Associations have placed these on record in submissions to the Legal Services Board,4 which has approved two applications by the SRA for regulatory approval for these changes.5

4. The cohort about to enter our Law Schools this September is the last cohort that will be able to qualify as a solicitor via the old route, although they can choose to follow the new route if they wish. The detailed transitional arrangements are a little but necessarily complicated and can be found on the SRA website.6

5. What are the implications of all this for “legal education”? At this point I want to draw a distinction between (1) legal education in the broadest sense of all education about the law, including the requirements laid down for professional qualification and (2) legal education at the level of a higher education degree. The provision of education to be higher education has to fall within the relevant descriptors in the UK Quality Code for Higher Education Frameworks for Higher Education Qualifications of UK Degree-Awarding Bodies.7 The lowest of these is level 4, a Certificate of Higher Education. Even that requires:

  • “knowledge of the underlying concepts and principles associated with their area(s) of study, and an ability to evaluate and interpret these within the context of that area of study

  • an ability to present, evaluate and interpret qualitative and quantitative data, in order to develop lines of argument and make sound judgements in accordance with basic theories and concepts of their subject(s) of study.”

I do not believe that that can be delivered solely by MCQs. Choosing between lines of argument developed by others is not developing them yourself. An honours degree at level 6 and a Masters’ degree at level 7 require much more. Undergraduate law degrees must comply with the Law Subject Benchmark Statement, which also demand so much more than the demonstration of knowledge.8 It is the case that some providers are intending to badge pure SQE prep courses as leading to a HE qualification, for example a PG certificate. Here, it is not clear what kinds of assessment will be involved (will it just passing mock SQE1 tests?). Other providers, perhaps realistically, are not bothering. How happy will a candidate be who gets a PG Certificate that they have passed mock SQE tests, but who then fails the SQE? Where there are courses that lead to an honours undergraduate or masters’ degree that include SQE1 prep, it does seem that conventional modes of degree assessment are adopted alongside MCQs. Overall, it does seem to me that, in the future, as a result of introduction of the SQE, there will be more legal education provided that will not be higher education at degree level.

6. How has this come about? This follows from the nature of the SQE which in turn is the product of the role of the SRA as a regulator. In devising the SQE, it has not addressed some such question as: what are the knowledge, skills and experience that an ordinary solicitor will need to practise effectively and safely in modern legal practice? It has a particular focus on a significantly narrower question: what are the knowledge, skills and experience that an ordinary solicitor will need to perform tasks that fall within the “regulated activities” safely for their clients. “Regulated activities” can only lawfully be undertaken by a solicitor (and sometimes other specified legal professionals) and then by all those with that qualification. Examples include probate, conveyancing and advocacy in the lower courts. It is the case that the list of regulated activities is the product of history and, in the case of many solicitors, bears no relationship to the work they actually do. But, during the planning of the SQE, it was made clear by government that there was no prospect of legislative time being available to change the list or content of regulated activities. Accordingly, the SQE decided that it had to test legal knowledge over what are effectively all the core subjects for a Qualifying Law Degree and a Legal Practice Course combined, and chose to add Conflict of Laws.

7. The SRA has also decided that the testing of knowledge, in SQE1, is to be done entirely through answering multiple choice questions, the “single best answer” being required in each case. While MCQs have been used in Law Schools, to a relatively limited extent, I am not aware of any HE legal (or indeed any) qualification compliant with the requirements of the Higher Education Qualifications Framework9 in which the outcomes needed to justify the claim to HE status can be demonstrated solely by MCQs. A major issue in the present context that is contested is how far MCQs can address how candidates approach the many situations where the law is uncertain. On the basis of the model SQE1 questions that were published by SRA, I remain deeply sceptical that they will do so, or indeed can. This gap could have been filled by requiring candidates to continue to have a law degree or GDL, and not just a degree in any subject. But the Legal Services Board, in approving the SRA’s proposals for the SQE, agreed with the SRA’s position that this was not necessary.10 The LSB noted11 that, in responding to them on this issue,

“The SRA has made clear that the SQE will test areas of law which are uncertain or require interpretation. In a response on this issue, it stated that multiple-choice questions can be used to examine areas of law that require interpretation. Options provided as possible answers to questions can give different interpretations of the law, include an answer that the law is uncertain in this area or include information about the extent of the risk a client is taking in relying on a particular interpretation.”

This seems to me to be lame in the extreme. Can there be more than one “single best answer” in cases of uncertainty? But the SRA are confident of their position. We shall see how their undertaking is delivered and how far the concerns on this matter are met.

8. What will be needed by way of preparation for SQE1 will be a cram course making the students learn by rote the knowledge necessary to answer the MCQs. A bit like the theory part of the driving test. But much longer. And probably but not necessarily more interesting. There will be plenty of practice for the students at doing MCQs. It remains to be seen how far SQE1 prep courses will go further than that. SQE preparation courses of different shapes and sizes are being offered by a range of providers. Some are bragging about such matters as how large their banks of MCQs are and how many videos they have. Some providers are Higher Education Institutions in England and Wales regulated by the Office for Students and the Quality Assurance Agency. Others are not – they are presumably only regulated by Trading Standards departments of local authorities. It is the case that any provider of a course or materials that wishes to use the SQE logo must register with the SRA. However, the SRA makes it clear that they do not regulate the quality of provision:

“ We do not regulate, accredit or endorse training providers or organisations. We also have no role in approving, endorsing or overseeing the training courses or materials, or their quality. The list is intended to help potential SQE candidates to find training.

This is not a comprehensive or definitive list of all training providers or organisations, but of all organisations who have asked us to be on the list.

Candidates should make their own enquiries to satisfy themselves as to the quality and suitability of training, and the products and services that organisations on the list offer.”

The current list of registered providers includes 20 Universities.12 Most of these, but not all were on the list of authorised LPC providers.13 Of older Universities that offered the LPC, Cardiff, City, Swansea and Sheffield, only City is a registered SQE provider. The position in at the University of Sheffield is that:

“From September, the University of Law will deliver postgraduate vocational law courses from our University. This collaboration will allow students to pursue a pathway to qualification as a solicitor with a leading provider, and enable the School of Law to focus on research-led teaching in law and criminology.”14

That says a lot.

9. Overall, key implications for legal education in the broadest sense are profound:

(1) The SRA has required that Solicitors’ profession in England and Wales to join a tiny list of legal professions across the world where there will be no requirement for qualification to have studied law at degree level. Consider this example. One SQE provider is offering SQE 1 and 2 prep courses that last a total of 23 weeks full time – the equivalent in most Universities of about two terms of study. So in that provider’s view, that is all that is needed for a graduate in, say, Chemistry, to acquire the knowledge and skills that the SRA have decided is necessary to qualify as a solicitor. It may be that such a student will fail. Some providers are offering preliminary courses to non-Law graduates before they reach SQE1. But what if a Chemistry graduate passes without one? Do I believe that SQE prep, including prep for the Legal Research, Writing and Drafting elements of SQE2, on its own will have begun to equip the student to read and understand the reports of complicated cases in the Court of Appeal or the Supreme Court or to address issues of statutory interpretation or to understand the kinds of arguments that can be deployed in support of one among a number of contested readings? I’m afraid not.

Possible outcomes include:

(a) the Solicitors’ profession collectively will be downgraded in the eyes of the world;

(b) in practice, people will not be hired to work as solicitors unless they have studied law at degree or GDL level, so in practice the solicitor’s profession collectively might still but perhaps should not be downgraded in the eyes of the world; however, possession of a law degree or GDL will have become a hidden requirement to enter practice – hidden requirements of a kind that make it more difficult for disadvantaged students to navigate;

(c) the SRA and Kaplan persuade the rest of the world to move away from law degrees for professional qualification, franchise the SQE round the world and make a lot of money.

(2) Certainly in the first instance, students will be faced with immense difficulty in finding their way in a market that is not coherently regulated. University students should be helped by their Careers Services and Law Schools. But how far will they be able to advise? Beware of Hedley Byrne v Heller. The SRA plans to publish SQE results that will demonstrate the relative success rates of different courses (Law and non-Law) across all educational providers, including but not confined to SQE prep courses. This seems to be based on the assumption that every degree programme is to be regarded as having a role in “preparing” (in the loosest sense) students for the SQE. An interesting assumption. In time it is hoped that statistics of pass rates will guide students in making their choices. It may be that publishing pass rates for different formal SQE providers may in time have some value, although the statistics while cohorts remain small are likely to be misleading. The relevance of the broader information about non-SQE providers is highly doubtful and is likely to be controversial.

(3) The drafting of the SQE1 questions will be crucial. The students will have to hope that the details of the law they have learned with their provider to answer MCQs will map on to the details of the law required by the SQE Examiners. At one extreme, the requirements may turn out to be relatively simplistic so that many, including the not particularly able, will pass; at the other, it will be pot luck which points of detail are required and many of the able will fail. The likely outcome will be somewhere in the middle. But where? Early SQE student cohorts will be faced by significant uncertainty, and that is likely to affect adversely equality, diversion and inclusion.

(4) The divide between professional legal education and university legal education will become even greater. Many academic lawyers will welcome that. I for one do not.

10. What, then, are the possible implications for Law Schools and legal education in Higher Education? Possibly not a lot.

Implications for the curriculum

(1) Most Universities seem not to wish to put on SQE prep courses or for SQE prep to become a key part of UG Law degree programmes. But some are planning to do so. As regards building SQE prep modules into an UG programme, I’m not sure how I could write module specifications for SQE prep modules that would satisfy the requirements of University Quality and Standards officers. But there it is.

(2) There seems little if any appetite to redesign UG programmes to ensure that students can if they wish in a three-year programme cover all the equivalents of the LPC subjects (and Conflict of Laws) in addition to the foundation subjects through conventional modules; such a programme seems unenticing, having no room, for example, for such subjects as jurisprudence, international law and family law. If I am wrong on that there will be exciting times for academics who can teach such subjects as Wills and Probate, Tax Law and Conflict of Laws.

(3) Conversely, Law Schools will now have greater flexibility in practice as regards the content of their curriculum. Each will no doubt have to decide how far the foundation subjects will continue to be compulsory for all their undergraduate students. Here, it should be remembered that possession of a Law degree or a GDL is still required for qualification for the Bar in England and Wales. And this is often part of a route for international students to qualify as a lawyer. Coverage of the foundation subjects is still a requirement for a Law degree to be recognised by the Bar Standards Board,15 although the term “Qualifying Law Degree” has been dropped as a term in respect of law degree courses starting in (or after) the 2019/20 academic year.16 I think it unlikely that many Law Schools will adopt a Law degree curriculum that ceases to offer one or more of the foundation subjects at all; some may well be tempted to treat more of them as options and/or look again at the specific topics covered in them.

Will there be an effect on recruitment?

(4) It is in my view unlikely that many students will obtain employment as a solicitor, except by Uncle Fred or Aunt Jane, on the back of a degree and the SQE but no law degree or GDL. If that is true, how long it will take for that message to get through to students is uncertain.

(5) Demand for places in Law Schools remains high.17 137,980 for 2021 entry. The total number of places in Law Schools seems to continue to rise (not the least for 2021 entry with plenty of anecdotal evidence of overshoots). In 2019/20 there were 29,045 new entrants to First degree Law courses in England and Wales.18 University managements almost invariably like to have a Law School and often (but not always) want bigger ones. Not least because there are plenty of applicants and entry standards relatively high. It is unlikely that this will be significantly dented by either (1) students who believe that they will be able to qualify as a lawyer without a law degree or GDL; or (2) the small number of students who adopt the solicitor apprenticeship route. As to the latter, there were 242 starts in 2019/20.19

Other effects

(6) One aspect of the new arrangements that is likely to receive attention is how far work by students in law clinics or pro bono activities, a welcome growth area within Law Schools, may become countable as qualifying work experience.

(7) More generally, many Law Schools and careers services will be working in co-operation with SQE providers to do what they can to identify pathways that work for their students. And they will need to monitor closely what happens when the SQE come into operation so that they can give informed advice to their students.

11. When I see the work of third year law students, in my own Law School and as an external examiner, I am enormously impressed by its standard and the wide range of legal knowledge and critical skills that are demonstrated in relation to many aspects of life. Studying a law degree over three years has made a big difference for them. Legal skills are helpful in many careers. We and our students know how far law is away from a mechanical process of learning and applying clear rules to unequivocal facts. It is a shame that the SRA, judged by its actions, seems to think different.

12. Overall, introduction of the SQE is likely to be good news for the Bar, who will be able to claim that their legal education requirements are superior to those for solicitors; bad news for the solicitors’ profession; bad news for students; but not necessarily bad news for Law Schools.

SHB

30 8 21, revised 6 9 21

3 For trenchant criticism of the proposals and the way they were developed by the SRA see Anthony. Bradney, Dumbing Down the Law: The SRA’s Proposals for Legal Training (Politeia, 2016).

6 https://www.sra.org.uk/students/sqe/transitional-arrangements/ In summary, the position is stated as follows:

“Our transitional arrangements apply to anyone who, before 1 September 2021, has completed, started, accepted an offer of a place or paid a non-refundable deposit for one of the following:

the Common Professional Examination / Graduate Diploma in Law (CPE)

the Legal Practice Course

a period of recognised training (also known as a training contract).

In the case of a qualifying law degree (QLD) and exempting law degree (ELD), these arrangements apply to anyone who has completed, started, accepted an offer of a place or paid a non-refundable deposit by 21 September 2021 (inclusive). This is because the English A-level results are later than usual in 2021.

In most cases, for the QLD, ELD and CPE, the relevant course must start at the latest on or before 31 December 2021.

Anyone who falls within this group will have until 31 December 2032 to qualify as a solicitor under the existing routes, as long as courses still remain available.”

9 See above.

10 See LSB decision notice 27 October 2020 paras 127-132.

11 LSB decision notice 27 October 2020 para. 144.

19 SRA Education and Training Report (July 2021): https://www.sra.org.uk/sra/how-we-work/reports/education-and-training/

Share:

Leave a Reply

%d bloggers like this: