Testing times

At the end of July, the Solicitors Regulation Authority (SRA) took a determined stride towards its goal of achieving a radical overhaul of the way solicitors qualify.

The regulator published the results of the pilot of the first stage of its Solicitors Qualifying Exam (SQE) process, hailing it as having broadly been a success.

More than 300 candidates were paid to sit a trial of the SQE1 super-exam, which is on track to go live in Autumn 2021.

Meanwhile, this December the second phase of the new regime, SQE2, will also be piloted and is due to be introduced for real in 2022.

The SQE1 will test candidates’ ‘functioning legal knowledge’ through multiple choice questions on core elements of law and practice; and the pilot also included a written ‘skills test’.

The second phase, SQE2, involves some 20 hours of practical legal skills assessment which will involve role plays and written tests.

As Patrick McCann, global head of learning at Linklaters, describes it: “It will be like sitting 10 different driving tests in one week.”

Alongside these assessments runs a requirement for ‘qualifying work experience’, designed to be more flexible than a training contract; it can be completed over a longer period and can include voluntary work at law centres and advice clinics.

The final piece of the jigsaw is that aspiring solicitors must also meet set ‘character and suitability’ requirements.

The new regime will raze all that has gone before it, so it will be the end of the legal practice course (LPC), the graduate diploma in law (GLP) and the training contract as we know it.

It is a bold plan, intended to open up access to the profession. Because all candidates will sit the same centralised test, independently marked – just like the old Law Society Finals, in fact – it will eradicate inconsistency in standards according to which university or training provider a person studied with.

It is also intended to dispel the notion that some routes to qualification are less valid than others – because ultimately, everyone will have passed the same test.

But admirable as the SRA’s intentions may be, many in the profession have doubts over whether this qualification revolution will achieve its aims, or lead to damaging unintended consequences.

On closer examination

There are two aspects to the SQE1 exam that worry lawyers.

Firstly, the method of testing; secondly, the subjects covered, which are narrower than under the current regime.

In the SQE1 pilot, candidates’ knowledge was tested in three assessments, each comprising 120 multiple choice questions.

The pilot report recommends tweaking this for the real test, consolidating the questions into two blockbuster 180-question assessments.

But crucially, both Kaplan (which ran the pilot) and its independent assessor gave the design of the multiple choice testing a thumbs up, as a robust process.

The second part of the piloted SQE1 test did not fare so well in the pilot report. In response to feedback from the profession that there needed to be a written element to the examination, the SRA had included a written skills test in the SQE1 exam, in addition to the multiple choice tests.

But following the pilot results, both Kaplan and the independent assessor have recommended that this written test should be removed.

One problem was it appeared to have disadvantaged candidates from black, Asian and minority ethnic (BAME) backgrounds.

The SRA is now considering whether to drop the written skills test from SQE1; and it may instead be included in SQE2, which will already contain some written elements.

But if it does so, this will leave the SQE1 as a test based entirely on multiple choice answers – something many in the profession are deeply uncomfortable with.

Amy Clowrey, chair of the Junior Lawyers Division (JLD), says it is important that no aspect of the testing is discriminatory, and the SRA will need to do more work to ensure this.

But she adds: “Writing is a lawyer’s craft. We all need to be up to scratch, whatever background we are from.”

“There is a lot we don’t know about the pilot report”, comments McCann. “It was not clear what it was that was disadvantaging people.

"But the solution [from Kaplan] is apparently not to alter the mechanism, but to leave it out… If the proposal was not to test research or writing skills, that would seem an unusual and counterintuitive approach.”

Mark Solon, director of Central Law Training, puts it more bluntly: “Lawyers can’t communicate in text-speak”, he remarks.

“You need lawyers who are articulate and competent in the way they write. Clients want reasoned and accurate advice – they don’t want multiple choice answers.”

Diane Parker, partner at Atherton Godfrey in Doncaster, adds: “I’m yet to be convinced that you can multiple choice the law. The law isn’t black and white.

"Much of the time, the answer will not be a, b, c or d. The answer will be ‘it depends’. A lot of legal training is about developing that critical thinking.”

While multiple choice testing is common in bar exams in America, this is coupled with academic requirements.

But under the SRA’s new regime, while you do need to hold a degree before you can qualify as a solicitor, there is no actual requirement for the academic study of law – something the Justice Committee recently expressed concerns about in a letter to the Legal Services Board (LSB).

McCann explains: “At least in theory, you can now become a solicitor in England and Wales without reading law as an educational subject as such – for example, gaining a law degree will not be evidence of your legal understanding.

"You will need to pass the rigorous SQE1 and 2 assessments, but how you get there is up to you.”

If the SRA does ultimately decide to drop any written element from the SQE1 examination, it can expect a strong reaction from the profession; but that is not the only worry for lawyers.

The second aspect of the SQE causing frowns on the brows of solicitors is the scope of the topics to be tested.

For Solon, the SQE regime simply misses the mark: “My concern about the new regime is that it doesn’t really deal with what’s going on in the law and legal practice right now – artificial intelligence, restructuring of legal practice, or how you work in the internet age.

"The ultimate test of the SQE will be, is this lawyer competent to work in the legal environment now?”

From the magic circle perspective, McCann remarks: ‘What is being assessed does not represent the work that our trainees will be doing on qualification.

"They will be doing seven or eight core subjects in the SQE, but not, for example, content currently covered in the City LPC elective subjects… Does what the SRA is testing for mirror what people will be doing in practice?"

The well-resourced City players are already looking at how they will develop their own training schemes to fill in the gaps left by the SQE – leading to what the Justice Committee has termed a “two tier training regime” that could “undermine the SRA's central goal of introducing a single assessment system for all solicitors”.

McCann confirms: “We are currently selecting a supplier who will provide our own educational entry into the profession, which will be wider in range, covering a tranche of practice-aligned subjects as well as preparing people for the SQE1 and 2.

"My impression is that most other [large city] firms will be doing the same.”

While there would be no regulatory requirement to follow this type of course, City firms are likely to make this a contractual requirement for trainees.

But McCann recognises that while City practices are able to find their own solutions, a major problem is looming for other parts of the legal profession: “The danger is for the smaller firms that can’t do that – how are they going to find people who can evidence that they have a good working grasp of relevant areas of law as is currently provided by the LPC; for example family law, or immigration law?”

A whole new experience

As well as passing SQE1 and 2, would-be lawyers will also need to complete two years’ ‘qualifying work experience’.

Unlike the current two-year training contract, however, in the brave new world this can be with up to four employers; and can include pro bono work in a university legal advice centre, in-house experience, or a summer spent working as a paralegal.

The aim is to provide aspiring lawyers with much more flexibility in how they obtain relevant experience – with obvious benefits in terms of opening up access to the profession.

All qualifying work must be signed off by a solicitor.

But the JLD has pointed out that the rules, as currently drafted, only require the relevant organisation to provide the “opportunity” to develop the prescribed competences; not to show that the individual actually did the relevant work – a point also taken up by the Justice Committee in its recent letter to the LSB.

Clowrey says: “There don’t seem to be any protections for junior lawyers.

"There is a real concern that they could be exploited, in terms of the work they do, and the wages. We are worried it will lead to people taking advantage of cheap labour.”

Another difficulty for law firms is the timing of the work experience compared to the traditional training contract.

At the moment, a trainee will typically join a law firm having competed the LPC. Parker says: “That year of the LPC really sharpens them up and makes them confident and able.

There is a tangible difference between those trainees, and a law graduate who joins as a paralegal – who is well behind the LPC student.”

But under the new regime, it is expected that students will complete the work experience element at an earlier stage.

“The idea is that the student gets their on-the-job experience between SQE1 and 2,” says Parker. “That’s going to be at best a law graduate, not an LPC graduate, in terms of their ability to do the job.

“A firm like Slaughter and May will be taking 20 to 30 trainees a year, so they can do in-house training schemes, or send them off for a week to do a training course. We take two trainees a year, one at a time.

“I don’t think we can afford to do that in future, because of the amount of training that we would have to do just to get them up to LPC graduate level… I’m not sure where the high street solicitors are going to come from.”

What’s next?

Despite the reservations of many in the profession, the SRA is clearly committed to the new SQE qualification regime.

As its chief executive Paul Philip commented on publication of the recent pilot report, he believes the SQE will help “build trust that all qualifying solicitors are meeting consistent, high standards”, regardless of the route to qualification.

Philip noted that the pilot brings the SRA “a step closer to delivering a world class assessment”.

So what’s next in the process?

The regulator will be engaging with the profession to tackle the controversial issue of whether or not to keep the written assessment of skills in SQE1, and if so, how it should be changed.

As it does so, it is also working with Kaplan on the design of the SQE2 pilot that will take place in December.

Once the results of that pilot have been analysed, in the summer of 2020 the SRA will make its final decision on ‘go-live’ for the SQE.

So subject to LSB approval, the expectation is that in Autumn 2021 a cohort of several thousand aspiring solicitors will be the first to sit the SQE1, each facing precisely the same questions as everyone else – but potentially travelling many different routes on their journey towards admission to the solicitors’ roll.

[biog] Rachel Rothwell is a freelance journalist