Introduction and context for this response
The University of Law welcomes the opportunity to respond to what would be a seismic shift in the regulatory function of the SRA, moving from a well-established regulation of pathways to a regulation of outcomes.
In order to respond to this consultation, the University has held meetings in all of its centres around the country as well as a series of teleconferences to which all staff were invited. The meetings and teleconferences were attended by academics and business professionals from student support, disability support, careers and pro bono. This response is informed by extensive consultation and incorporates the views from across The University of Law, one of the biggest providers of under- and postgraduate legal education and training in the UK. The vast majority of our academic staff are qualified solicitors who have been in practice, and therefore have the dual viewpoint of understanding both the standards required of trainee and qualified solicitors in practice, and the realities of training students to acquire the knowledge and skills needed to meet those standards.
The University has also been in discussion with many law firms over the proposals, both on an individual basis and in round-table events we have hosted. We do not purport to be expressing the views of law firms in this submission, yet we found those discussions to be beneficial in formulating this response and in reinforcing our own views.
During our internal consultations, many colleagues observed that the SRA’s desire is to establish a standardised, centralised system to address perceived inconsistencies in the quality of training, but the relaxation or even deregulation of training providers brings risks, explained more fully below.
Question 1: To what extent do you agree or disagree that the proposed SQE is a robust and effective measure of competence?
We do think there are positive reasons for a centralised system of examination, particularly to achieve consistency. We do not oppose the concept of centralised examinations. There is, however, disagreement that the proposed SQE will be a robust and effective measure of competence.
In general, it was agreed that, as with other professions, law should be a graduate profession but the SQE will be too superficial in stage 1 and too narrow and restricted in stage 2, to properly assess the competence needed for trainee or qualified solicitors to safely act for the public. In particular, the loss of elective subjects means that the level of understanding of key practice areas will inevitably be lower under the SQE regime than the current one, leading to the likely need for add-on courses for students to equip themselves properly for practice. We anticipate that many law firms will require such courses to be undertaken before the period of work based learning commences to make up for the competence gap compared to current trainees. These courses add to the cost of training, and potentially end up costing students more than the current LPC.
Whilst we agree that the SQE stage 1 examination, together with the volume of the material to be covered in the syllabus, would certainly provide a robust examination, it may be a robust examination of functioning knowledge only and not competence. In practice, there are not always a set number of options one of which is correct. Advice is more nuanced and complex. The SQE may not develop or test the full range of intellectual skills needed to practise law. Setting questions that require an answer after only approximately 90 seconds per question (on average) cannot adequately deal with the higher level analytical skills and the ability to evaluate that are essential for a solicitor. We are concerned that the proposed assessments may mean students are less well equipped for practice than they are under the current pathways to qualification.
Of further concern is the risk that the proposed examinations could be discriminatory; there are various studies which show that MCQ examinations may unfairly disadvantage students with learning difficulties.
From a careers perspective, the LPC brings a significant benefit to some students as weight is placed on the quality of the result achieved (most providers do grade their awards), and therefore students with a weaker previous academic background can show development. The SQE proposals risk pushing more scrutiny onto the student’s degree and A-level results, as they will not have the same legal training as now at the point of making applications. This may disadvantage certain students; thereby negating what the SRA are trying to achieve (more opportunities for more students).
The assessment framework is too narrow; the omission of practice areas such as Family Law, Employment Law, and Mergers and Acquisitions is glaring and may remove the ability of the SRA to measure competence in key areas. Such a narrowing of the syllabus means students will not have to learn and will not be assessed on their appreciation of how the law works in society, and how it is applied. Doing the traditional LPC enables students from all backgrounds to reach a level of competence through workshop training which provides them with the skills and confidence not only to embark upon a training contract, but to do well in the recruitment process. The new proposal risks taking away that comprehensive level of training, and instead may produce candidates who are simply good at learning concepts in a vacuum. The EDI issues are particularly noticeable here (see also Q7). There are further concerns that students will be less prepared for practice, and the SQE model will not provide ‘all-rounder’ solicitors.
The consultation paper is unclear about the effect on solicitor apprenticeships and we question the extent to which this model will split knowledge gathering/skills development. More fundamentally, we do not understand how the concept of an apprenticeship (learning on the job over a period of years) fits with the proposal for SQE1 to be sat in one sitting. This seems to us to be at odds with the purpose of an apprenticeship.
Question 2a: To what extent do you agree or disagree with our proposals for qualifying legal work experience?
It is concerning to see the absence of proposals to monitor the period of qualifying work experience (QWE). It should be noted that, in contrast, apprentices will be closely monitored when in the work place. We are of the view that this will create an unavoidable two-tier system. Solicitor apprentices will be better off; the apprenticeship will be regulated. We are strongly of the view that all QWE should be regulated and recorded, and assessed.
Whilst the opening up of a variety of ways to obtain QWE is to be welcomed, it is not clear how students/trainees will record their QWE. There is the potential for this to become, at best, disorganised and, at worst, chaotic. This is particularly so if QWE can be retrospective to the date of implementation of the SQE system, and so work done without it being thought of at the time as counting for QWE could require retrospective endorsement.
There is a need to clarify the timings of QWE; rather than simply specifying that students “typically do SQE1 before” it should be “always do SQE1 before”, unless they are on an apprenticeship route (if uniformity is to be achieved then all qualifying legal work experience should be after stage 1 SQE). That said, we are of the view that graduate students will not in fact be ready for QWE after SQE1 alone as they will not have gained the necessary level of skills. From firms’ perspective, it would be more difficult to assess the quality of candidates at SQE1 level. These proposals would lead to another (see above) type of two tier system i.e. those that already have contacts in practice and/or good chances of securing qualifying work experience and feel confident enough to press ahead with the SQE1 route, and those that do not.
The proposed timing of SQE2 is of concern to firms. Their anxieties include questions about how this will interrupt the work-based learning, how the firms will prepare trainees, how will they release them. There is no doubt that the proposed model will cause disruption as people leave the office to do refresher training and take the exam. To avoid this, and to minimise disruption to working practice, firms will likely want students to take SQE2 as early as they possibly can, and the SRA will have changed everything (content, accessibility and cost) and nothing (timings).
The opportunity to use clinic, Legal Advice Centres and other pro-bono is a benefit. On a positive note, pro-bono and other clinic work have reporting requirements so it is possible that students/trainees could receive a high-quality experience which could be recorded. That said, clarification will be needed on whether students can count informal work experience as work based learning, and if so, it must be ensured that this is both adequate and robust. A definition of what is counted as QWE will be needed.
Question 2b: What length of time do you think would be the most appropriate minimum requirement for workplace experience?
The University’s view is that the length of QWE should be 24 months, but we make additional observations. The length of the experience is as important as the nature and quality of work experience; 24 months of photocopying and acting as a messenger would not be acceptable. It is quite clear that the QWE has to be monitored by the SRA. Further, some colleagues suggested the 24 months should be allowed to be taken flexibly, possibly consisting of set minimum continuous periods of at least 3 months. That said, there was some nervousness about this; because the SRA cannot or will not regulate QWE, firms only have to provide “an opportunity” for students to train, so the quality will vary, and if the time period is very short (even at 3 months) there is a question as to whether the student will meet competence. Piecemeal collecting of experience will be an issue – and without regulation, there will be no overview of the total experience of the student.
It is not clear whether there will be anything to prevent someone doing a SQE2 examination within the QWE period and thereby effectively qualify earlier. This does not fit well with the examples of qualification routes outlined by the SRA in the consultation paper. The SRA seems to suggest that the SQE2 is taken after the QWE to test competence at the point of qualification, but this is not prescribed and therefore creates uncertainty.
Question 3: To what extent do you agree or disagree with our proposals for the regulation of preparatory training for the SQE?
Generally, we agree in principle that some deregulation of training providers by the SRA would enable training providers to innovate more on developing programmes that meet both the needs of the firms and the students. We would welcome a more liberal regulatory regime that encourages and allows innovation. However, on the whole, we disagree with the proposals.
As a quality training provider, we identify significant risks for consumers and law firms that moving to an outcomes-based system, without any form of regulation of courses or providers, will open the market to unscrupulous training providers whose quality is at best mixed. In particular, there is likely to be a proliferation of SQE crammer courses which may well not be of good value or adequately prepare students for the SQE1 assessments. There is a real risk of having a qualifying exam which can be done from a book and without the rigour and skills needed properly to protect the public and prepare for life in practice. It is only by some level of regulation of preparatory training that the SRA can ensure the level of skills and competence by trainees in firms can be maintained at least at current levels, as we are concerned that the SQE alone will not achieve this.
The effective abolition of the QLD will have substantial knock-on effects for the training for those graduates who did not do a law degree. Whether or not universities embrace SQE1 elements in their law degrees, the loss of clear training requirements for the GDL risks creating a substantial gap between those students who have done a law degree, and those who wish to convert subsequently. We consider it important for the profession that entrants are at a similar level of core legal knowledge, whatever their underlying degree.
The SRA proposals may also impact negatively on diversity, in that firms may revert to recruiting trainees from tried and tested backgrounds. Good performance on an LPC from a well-recognised and respected professional training provider can create opportunities for students who are late developers or from disadvantaged backgrounds.
In effect, the only ‘regulation’ of providers in the proposals is through a concept of establishing a league table of “good providers” by reference to results. We do not see how such league tables could be produced given the absence of any prescribed training programme. Students will not be required to use any provider, and some could entirely self-teach. Some will self-teach, but attend a provider for revision sessions. Others will take different modules with different providers. Where modules are taken with different providers, some of those modules will overlap within the same SQE1 exam. In these circumstances, it will be meaningless to publish results by provider.
This complexity in training, caused by the absence of regulation of preparatory training, risks causing confusion for both students and those advising them. At present, the QLD system is fairly easy to understand, and brings clarity to students’ decision making. The proposals will result in a more complicated system, with real difficulties in students obtaining clear advice as they make decisions over what courses and modules to study. This complexity will also make it more difficult for employers who sponsor students, as they will also need to work out precisely what training is needed for each individual student. We do not consider that creating such uncertainty and complexity in the route to qualification is a benefit to either students or employers, and is likely to have negative EDI implications.
Question 4: To what extent do you agree or disagree that our proposed model is a suitable test of the requirements needed to become a solicitor?
The University disagrees that the proposed SRA model is a suitable test of the requirements to become a solicitor. The combination of subjects within individual SQE1 assessments, and the resulting weighting this puts on different parts of the syllabus, is troubling. The most acute illustration is the combination of civil dispute resolution, contract law and tort law into one assessment, contrasted with criminal law and practice being in a single separate assessment. Given the fundamental importance of contract and tort law, to weigh subjects in this way does appear to us to be very difficult to justify and does not reflect the workload of most solicitors. The same point can be made about other subject combinations within SQE1, and should the proposals go ahead we would urge that the subject balance and coverage be reviewed.
Equally, real concern was expressed about the loss of the elective period of study. Firms will find their trainees will not have the subject knowledge of the area they are working on, nor the same level of skills in applying knowledge to practice areas that current trainees have, which creates a substantial risk when they are going into the office environment without the specialised areas of knowledge that would normally be expected. The removal of the electives must be a significant concern for firms who only offer services in the elective areas, whether large commercial firms whose trainees will not have done any banking, mergers or public companies training, or smaller firms whose practice might rely on family, employment or immigration work; it is difficult to see what benefit such firms would gain from employing students with a pass in the SQE but no additional training.
More specifically, concern was raised regarding the incorporation of Solicitors Accounts into the SQE1 assessment - solicitors are entrusted to undertake monetary transactions and need to be confident in dealing with client’s money. Being tested by MCQs, or single best answer, or even extended matching questions, does not inspire confidence in this area. Similarly, the treatment of professional conduct (including regulation) and ethics (PCE) is seen as a major issue. The current PCE regime includes substantial training, both on the LPC and through the compulsory elements of the PSC, including both discrete and pervasive assessment. The scope of PCE assessment in the SQE is unclear, particularly as to the extent it will be assessed across all SQE1 exams and its importance for SQE2 exams, but the training requirement will clearly be far less than at present. The loss of PCE training as part of the PSC is particularly concerning, given how it allows trainees to refresh and study PCE in real context. We think that this subject deserves more importance, and a requirement and commitment to training both before and during the QWE. We are concerned that the proposed approach will put both junior lawyers and the public at risk.
Further the view was very strongly expressed that the value in a period of QWE was substantially undermined if the students were not equipped with the necessary skills beforehand. The absence of any training requirements for SQE2, and the implication that any training students choose to take (or firms provide) will be during the QWE not before, inevitably means that students will start their QWE with lower skills levels than when they start their training contracts under the current regime. Some colleagues felt that the development of skills in a coherent way through the teaching of electives was key to making students practice ready; this opportunity is lost under the current proposal.
Reservations have been raised regarding MCQs in particular as a form of assessment. We acknowledge MCQs of this nature are used in the recruitment of the judiciary and the medical profession but these are used as part of a long series of exams (medical profession) or as a very high level screening test along with a written application and interview (judiciary).
Colleagues also felt that the SQE2 assessment transfers the onus of training and therefore cost to law firms to provide skills training during the QWE, and for many firms this will be very difficult. This is particularly so for those firms who are unable to offer training in two of the five available contexts for SQE2. We have had comments from large firms with dedicated learning and development teams that they simply do not have the internal resource to do this, and for smaller firms this is likely to be a real barrier to taking on trainees. Firms will also consider paying less if they are employing a less skilled workforce.
Colleagues with experience of the BPTC’s change to a centrally set assessment saw the SRA’s proposals as a similar kind of transition in that the size of the syllabus would be problematic, making it unwieldy and unfair for students to learn. This has led, in recent years, to the syllabus being reduced as the BSB has become more expert in exam writing and setting.
The proposals may remove some of the barriers that disabled students face as statistics show that disabled post-graduate LPC students find it difficult to get through the current exam and get a training contract; this proposal may provide more routes in for those students. This is, however, subject to the caveat that the new assessments could be fairly sat by those students. If not, the proposal does not remove barriers so much as replace them with different ones.
Question 5: To what extent do you agree or disagree that we should offer any exemptions from the SQE stage 1 or 2?
Responses from staff were split. On the one hand, there are significant cost implications if everyone must take every part of both stages of the SQE. If someone has already expended a lot of money on something equivalent, then to make them pay for the SQE is unfair and raises EDI issues. It is not clear whether there will be exemptions allowed for foreign qualified lawyers for SQE2. Many colleagues were also struck by the total absence of any mention of the CILEx route.
On the other, many colleagues were of the view there should logically be no exemptions. If the SQE is introduced as proposed, for reasons given above, it is the University’s view that it would be workable only without exemptions.
Finally, and this related point was raised time and again, we do understand that the SRA feels the need to have an assurance of competence against their framework, but the SRA should continue to rely on the regulation, quality and standards of education in law schools. The existing system, distinguishing between academic training and vocational training, has largely worked well, and is an established system that is well understood by students, advisors and employers. Exemptions work within that structure. Whilst rigour can always be improved, we do consider that this would be better achieved by the SRA continuing to regulate pathways and providers, and to make evolutionary rather than revolutionary changes.
Question 6: To what extent do you agree or disagree with our proposed transitional arrangements?
We disagree that the proposed transitional arrangements are adequate.
Students’ expectations have to be managed. Students are already on the “journey” to qualification and they need to be informed clearly and in a timely fashion about the new system. Current Year 1 QLD students will be affected on the current timeline, albeit that they have a choice of LPC or SQE. Students who have already started a part-time QLD or who may be looking to defer/intermit will be caught up in the beginning of the SQE but they may not necessarily know about it, but may have barriers to completing and qualifying. This must be addressed urgently. Even so, the transition period is too short, because it assumes that students starting their law degrees in 2018 will then go to the LPC and get a training contract in quick succession, and there is no room for slippage. Furthermore, what is the position of someone currently on a non-law degree but who started with every intention of completing the GDL? We are already receiving queries from such students, who are intending to commence a GDL in 2018 or later, and who are worried about what the implications of the SQE proposals are for them. The pressure this puts on students is immense. Has the SRA consulted students?
If the first assessment point for SQE1 is September 2019, there is a general view is that this is not a realistic timeline. At best it is ambitious and in fact, it is highly unlikely that it will be ready. Tendering for the assessment provider, appointing the provider and designing all the exams for a first sitting in 2019, never mind a trial or pilot, and full test and review, is a mammoth task. We think that to try and implement a system by 2019, when in 2017 we will still be in consultation, is unrealistic and possibly dangerous. Further, training providers will need time properly to consider and develop suitable and effective SQE courses which will fit in with an appropriate model and the final model is yet to be agreed. If this is rushed, it will only serve to diminish rather than enhance quality.
On a related but distinct point, firms’ recruitment cycle will shortly be underway for 2019, so there is great concern as to the lateness of this.
Question 7: Do you foresee any positive or negative EDI impacts arising from our proposals?
Colleagues have acknowledged that there may be positive EDI impacts of the proposals, particularly in that training providers may have more flexibility as to the content of the undergraduate law degree, assuming abolition of the QLD, and the potential for less expensive online products as preparation for the SQE assessment. Equally the academically strong student, who is being courted by the firms, will continue to succeed. There is a danger though of creating a second tier of students who are not as academically strong and who may at the same time have financial difficulties. There are concomitant cost consequences given the complexities caused by abandoning the QLD. Different students will turn up for SQE1 courses from very different starting points, whereas for the LPC they currently have a common core of expected knowledge. Some students will have to repeat elements they have already done and this increases costs beyond the cost of assessment, to include course fees – especially because of the way the SRA have combined subjects.
Changing this to the SQE split model may also deter students from less advantaged backgrounds who are concerned they will not get the necessary QWE and will therefore not start a qualification they perceive to be impossible to complete and would therefore only leave them with a partial qualification. The proposed model could also end up being more expensive than the current one and therefore be less accessible as a result.
Colleagues have a concern that the positives would be outweighed by the negative impacts, particularly for part-time students who may not be in a position to undertake all the assessments in one sitting due to the volume of preparatory work required whilst working and studying at the same time. Rather than creating a more diverse profession; it will create difficulties for these students, who may also be mature students, and who are more likely to have financial issues. Cost implications will surely be a barrier along with the time needed to prepare for seven assessments in one sitting.
Colleagues also noted that students with disabilities, e.g. dyslexic students who need additional support, may also struggle to sit so many centralised exams in such a short space of time. Some students with visual impairments, struggle on medical grounds with MCQ style assessments which could lead to discrimination.
We agree with the aim of ensuring high, consistent, professional standards, and also of the desirability of widening participation to the profession, we disagree that these proposals as they stand will achieve those aims. We note with concern the absence of a detailed pedagogical basis for the proposed changes to the training regime, and weaknesses in the underlying argument as to why these changes are necessary. For instance, it is not obvious to the University either that the level of negligence claims or complaints against the profession (cited as a reason for change) are caused by the current training regime pre-qualification, nor that the proposed reforms could have a meaningful impact – indeed, there is a risk that competence levels may be lowered by these proposals. We also do not consider that the case has been adequately made for the sweeping nature of the proposed reforms, as opposed to more evolutionary change.
We feel that the proposals ignore the fact that to have a career in law, there is value in (regulated, quality) training generally. The failing of the assessment should be the bar to qualification, but passing the exam should not be the only hurdle to practice. It is in academic training that skills, techniques and procedure are learned and understood in context, whilst giving students a forum in which to safely practise those skills and gain in confidence and ability without risking the adverse consequences that can come from mistakes made in the office. These proposals would not necessarily encourage reflection and training methods designed to embed knowledge and encourage longer-term retention for practice. The need for this is something that firms mention frequently, and represent the enhancements that are needed to improve legal training. The current proposals risk encouraging legal education down a route of ‘cramming’ for tests, leading to poorer long-term knowledge, and a lower skills base on day 1 of acting for clients.
As mentioned above, the University does not reject the concept of centrally set assessments, would welcome some de-regulation to enable greater innovation by providers, and appreciates that there is always scope to improve quality and raise standards. We would be happy to engage with any process to explore how best to advance the training, assessment, and qualification process for the profession.