Double take

We are two years on from the introduction of the Solicitors Qualifying Examination and there are still transitional challenges. These are reflected in the most recently published results for SQE2, which showed a fall in the pass rate from 79% to 64%. The pass rate for candidates sitting the exam for the first time fell from 82% to 69%. The next results will be published on 8 April.

The SQE has three elements: SQE1, which is a series of multiple-choice tests designed to assess functional legal knowledge; SQE2, which involves 16 practical exercises (12 written assessments and four oral assessments) to test the skills and application of legal knowledge; and qualifying work experience (QWE) which has to be signed off by a solicitor or compliance officer for legal practice.

While students must pass SQE1 (the latest overall pass rate is 53%) or have an exemption in order to sit SQE2, the SQE provides more flexibility than the Legal Practice Course (LPC) – the previous route to qualification. The latter involved passing an exam and then completing a training contract. Students can take SQE1 and SQE2 and then complete QWE, either via a traditional law firm or in-house training contract, or up to four placements at legal services providers. These can be law firms, in-house legal departments, law clinics or other pro bono/public service organisations. Under another option, which is popular among self-funding candidates who have passed SQE1, trainees study part-time or online for their SQE2 while completing QWE – and earn while they learn.

The SQE opens up access to the profession and provides wider scope for social mobility and career development. Candidates no longer require a training contract. What is more, the ability to decide when to take each set of assessments allows self-funding candidates to spread the financial burden over a longer period.

As Lucie Allen, managing director of legal exam preparation provider BARBRI Global, explains: ‘It’s still tough to find qualifying work experience – someone has to give you a job and you can have up to four placements to tick the QWE box. You still need to get those jobs, and find someone to sign off your work, but the concept of the City law firm training contract as the only route [to qualification] is certainly disappearing.’

Standardised assessments

Standardised assessments were designed to provide certainty, to law firms and their clients, that newly qualified solicitors meet competency standards; and to candidates, that they will all be assessed in the same way. While the LPC was delivered and marked by law schools and other training providers, under the SQE format everyone takes the same assessments, which are managed and marked by the education business Kaplan in partnership with the Solicitors Regulation Authority. However, these advantages are offset by the low pass rate of 64% compared with pass rates of over 90% for the LPC. Moreover, rules stipulate that candidates must complete the entire SQE within six years of taking their first assessment, and can only take each of SQE1 and SQE2 three times.

It costs £2,766 to take SQE2, whether for a first attempt or a resit. And several City firms, including Clifford Chance, which is reported to be the largest training contract provider in the country, have revoked training contract offers to students who failed the SQE1 at the first attempt.

'Firms have decided they want their trainees to pass the exams before they join, to avoid the business disruption of trainees leaving their training contracts to take their exams'

Patrick McCann, City of London Law Society training committee

However, Patrick McCann, chair of the City of London Law Society training committee, reports that most firms are supporting trainees who fail the SQE first time around. ‘We don’t know why people fail, or whether passing first time will make you a great solicitor, and we do know that candidates from under-represented communities are not achieving great results,’ he says.

Many people who fail the SQE have never failed an exam before, so the issue may be format or timing rather than competence. McCann raises two potential factors: ‘First, candidates are being tested two-and-a-half years ahead of their NQ date. Firms have decided they want their trainees to pass the exams before they join to avoid the business disruption of trainees leaving their training contracts to take their exams. Second, candidates are taking the SQE2 exams without the practical experience that the exams are designed to assess.’

At the SRA’s ‘#SQE Virtual Conference 2024 – SQE two years on’, which was streamed on 22 March, Zoe Robinson, director of qualifications at Kaplan, explained that the sharp fall in the SQE2 pass rate was partly due to transitional arrangements. ‘This sitting was the last time that qualified lawyers who had started to qualify as solicitors through the Qualified Lawyers Transfer Scheme could take the exam, so a higher percentage was made up by candidates who did not have to pass SQE1 and their pass rate was 37%,’ she said.

‘Those who sit SQE2 who have not passed SQE1 perform less well than those who have completed SQE1.’ Robinson advised candidates: ‘Don’t underestimate the amount of preparation and the importance of having up-to-date legal knowledge.’

Choosing a training provider

Because the SQE is relatively new, preparation is hampered by a lack of information and resources. Not least, there are no past papers to practise on. And although the SRA publishes a list of organisations that provide SQE training, it does not accredit or endorse any of them.

Furthermore, although the SRA originally committed to publishing training providers’ SQE pass rates by late 2023, it then missed its own deadline. A statement on the SRA website said: ‘We had intended to publish, before the end of 2023, data that would link candidate outcomes with the training they told us they had undertaken. However, we do not yet have sufficient data to enable us to publish information in a way that would be useful, given the variety of training options available.’

Victoria Cromwell, head of new business and account management at BARBRI, explains that law schools and training providers are adjusting their approach. A wider choice of training providers and the availability of online, self-service courses make training more affordable. But the lack of transparency around pass marks and the SRA’s failure to rank results by training provider, makes choosing a provider challenging, particularly for self-funded candidates.

BARBRI is unusual in that it publishes its pass rates, which are tracking well above the industry average at 65% for SQE1 and 82% for SQE2. But in order to do this, it has to ask students to share their results – it is not possible to get them directly, even though candidates are asked to supply the name of their training provider. ‘At BARBRI we like to talk about our students’ results because they are good, but a lot of providers don’t say anything, and there is no way to check. This creates a problem for transparency, and student and employer choice,’ says Allen.

‘It’s a mindset shift, from a very high pass rate for the LPC because the course providers were marking their own students, to a standardised process where the pass rate is lower. It’s not bad, it’s just different and people need to get their heads around it.’

Allen also highlights the effect of the lower pass rate and firms’ response to it in terms of candidate wellbeing: ‘The mental stress of these exams also needs to be recognised. It’s a high-stakes exam, and people have invested time, energy and money – and now they are worried they might lose their job if they don’t pass.’

Practical challenges

The past two years have seen practical challenges around SQE2 assessments. Last November, IT issues meant that candidates at a test centre in London’s Chiswick were sent home on the first day of their written assessments with the option to sit the exam at a different test centre the next day or postpone until January. Although Kaplan offered refunds to those unable to attend the rescheduled assessment, plus a goodwill payment of £250 to each candidate, in some cases this will have delayed their qualification.

Earlier this year, SQE2 oral assessments at test centres in London, Birmingham, Cardiff and Manchester were conducted during train strikes between 30 January and 6 February. A statement on the SRA website advised candidates to ‘check travel arrangements in advance and leave enough time to travel to your test centre as you must arrive on time’.

There have also been problems with marking. Last September, Kaplan apologised to students for an error in marking the SQE2 Business Case and Matter Analysis (BCMA) paper. The 22 exam papers affected were remarked and for all but one student, ‘this did not lead to a change in their overall SQE2 result’. At the SRA’s #SQE Virtual Conference, Robinson reiterated the apology, explaining that the error had occurred although there had been quality assurance checks in place. ‘We understand that having uncertainty about an exam result is stressful and deeply unsettling. We have taken extensive action to rectify the position,’ she said.

Last week, Daisy Pritchard, an employment paralegal at Eversheds Sutherland, posted on LinkedIn about her experience of narrowly failing the SQE2 due to this marking error, which gave her 0% credit for her BCMA paper. She wrote that ‘after seven months of going back and forth … Kaplan [decided] that “the error was a problem with the marking and not the sitting itself so technically it is not a material irregularity” … therefore we are not only required to resit the entire SQE2 again, but all asked to pay Kaplan another £2,766 for the privilege.’

Social mobility

The SQE has brought progress on social mobility. In addition to the sharp rise in apprenticeships, there are initiatives leveraging the ability of people to qualify without training contracts. The Social Welfare Solicitors Qualification Fund (SWSQF) is a joint venture between the City of London Law Society, BARBRI and Young Legal Aid Lawyers which finances the costs of SQE preparation courses and assessments for people working in the social welfare sector. McCann and Cromwell are two of the co-founders. Supporters include magic circle and other City law firms, the City of London Solicitors’ Company Charitable Fund and the Law Society.

As McCann explains, SWSQF trainees study 10-12 hours a week while working in legal advice centres and law firms working in social welfare. In 2023, Claire Friel, a criminal defence lawyer at Goldman Bailey Solicitors, was the first solicitor to qualify under the scheme.

Mary Bonsor is the founder of Flex Legal, a legal resourcing platform that connects legal teams and interim legal professionals which was acquired by Mishcon de Reya in January. Flex Trainee, which currently has 75 trainees, is delivered in partnership with STRIVE, which develops legal talent from intersectionally diverse, socially mobile and underrepresented backgrounds, and the Social Mobility Business Partnership, which helps students from low-income backgrounds to pursue professional careers. The Flex Trainee scheme for graduates who have completed the LPC or SQE1 covers SQE2 assessment fees and an SQE prep course, which is combined with QWE gained through interim assignments with Flex clients and recorded through an online SQE Journal.

Bonsor prefers SQE2 to SQE1, because of its focus on practical experience rather than theory. But while the SQE route was designed to fit QWE between SQE1 and SQE2 – that is, to enable trainees to gain practical experience before taking the assessments – in terms of content the two are closely related. This is why so many firms are frontloading SQE2 and it also explains the low pass rate. ‘The data is showing that unless you’ve done SQE1 recently, you have no hope of passing SQE2. So it will be interesting to see how apprentices get on, as they do SQE1, then QWE, followed by SQE2 as the end assessment.’

Bonsor is concerned that the SQE’s limit of three retakes, which is reinforced by law firms’ expectations of trainees, is constraining diversity. Some trainees are excellent at law but struggle with the assessments, particularly when the content does not relate to their practical experience. Some find it hard to deal with multiple-choice exams. ‘I question whether combining a new job with studying is the right model,’ Bonsor says. ‘But that may well be a temporary situation, which decreases as universities start bolting the SQE1 on to law degrees, enabling trainees to focus on QWE and SQE2.’

Shifting the bottlenecks

While the SQE’s multiple routes to qualification are broadening access to the profession, there are still hurdles to overcome. Cromwell wonders whether the bottleneck caused by the sharp competition for training contracts has been alleviated, or whether it will simply move further along the solicitor career path. ‘Will we see a shortage of NQ roles for all the freshly minted solicitors that have come through the SQE?’ she asks. The current pass rate suggests that this is less likely, at least for now, although 2024 will be the first year that more than 10,000 people will sit the SQE, as the LPC option falls away.

McCann sees the SQE’s low pass rate creating bottlenecks. ‘The pass rate for the LPC was 80%-plus and City firms were seeing pass rates of well over 90%. Now it has gone down nationally to 53%. So there is already a bottleneck of talented prospective lawyers, who have never failed an exam in their lives, who are now being told they are not good enough to be a solicitor.’ McCann is encouraging firms to support trainees who need to retake the SQE1, particularly given the lack of transparency in terms of pass marks, which are not consistent, training providers, some of whom may not be reliable, and past papers, which are not available. The task is urgent. SQE2 becomes the only route to qualification in 2024/25.