Education and training: passing muster?

The Solicitors Regulation Authority has proposed a training revolution that would effectively allow aspiring solicitors to design their own routes to qualification as long as they pass a final centralised exam.

Stakeholders acknowledge that the current regime, which replaced the Law Society Finals and articles more than 20 years ago, requires reform. There is also support – including from the Law Society – for a universal point-of-qualification ‘super-exam’ to introduce more consistent and comparable standards among those achieving the label ‘solicitor’.

However, some practitioners and providers fear the SRA is gambling with the profession’s reputation. Aspiring solicitors would, potentially, no longer need to be graduates, follow prescribed postgraduate vocational courses or undertake a minimum period of on-the-job training.

Critics also question whether the proposals will achieve one of the key aims – greater diversity. They point to the risk of creating a ‘gold standard’ for those who are sponsored or can afford expensive preparatory courses and find work placements; and a cheaper version for those without connections who may then face poorer employment prospects.

In its consultation paper before Christmas, the SRA set out its proposals for the Solicitors Qualifying Examination (SQE), based on the regulator’s competence statement, which would be split into two parts. The first would assess candidates’ ability to apply legal knowledge through an online multiple choice test, while the second would assess practical legal skills through role play with ‘standardised clients’ and computer-based tasks and case studies.

The proposed timetable for change is tight (see box, p15) but there is still much to be clarified, including: the cost and format of the exam; the impact on diversity; whether there should be pre-qualification requirements; what could count as periods of recognised training; and whether employers should put their trainees through more formal assessments.

The SRA has set out a 20-question survey, which closes on 4 March, to gather stakeholders’ views. Feelings are running high but some fear the new blueprint is effectively a ‘done deal’.

Ruth Grant, a partner at Hogan Lovells, is chair of the firm’s global diversity inclusion committee and responsible for training in the London office. She says there were initially three options for reform but the SRA has chosen to consult on just one.

‘We are being asked to comment on a very skeletal idea and I think people feel they are in a corner,’ she says. ‘You are forced to assume this is going to happen, when actually many people would rather look at other options. And then, when you are asked to comment, the detail is so thin it is hard to do anything other than express vague concerns to which the SRA is able to say “don’t worry, we will deal with that”.’

But Julie Brannan, the SRA’s director of education and training, promises: ‘It is absolutely not a done deal. We want to hear whether there are reasons which we haven’t identified why this would be unworkable.’

Junior lawyers are sceptical. They point to the regulator’s guidance in relation to a centralised assessment for solicitor apprentices, which they argue suggests the decision has already been made.

But Brannan says the apprenticeship timetable has been driven by the government. ‘If, following consultation, we decide to introduce the SQE, we would plan to merge the apprenticeship – and the Qualified Lawyers Transfer Scheme (QLTS) – assessments into a single assessment for all,’ she explains. ‘If we decide against, those assessments can stand alone.

‘What I would say is – keep your eye on the prize, which is better-quality solicitors.’

‘Wouldn’t it be great if that were true?’ retorts Allan Murray-Jones, chair of the Law Society’s education and training committee.

‘The SRA is proposing to dismantle what we do now on a hope and a prayer that what they put in place will be more challenging. If you read the consultation paper, it is very thin on any supporting evidence and it is almost like an article of faith.’

So what is the regulator’s rationale?

The SRA says there is currently no common basis for assessing the quality of those emerging from the process. Entry requirements for the 104 institutions offering qualifying law degrees range from A and A* A-level grades to C and D grades; some of the 26 Legal Practice Course (LPC) providers have 90%-plus pass rates, others below 50%; 2,000 firms offer traineeships but only 2% are not signed off as competent to qualify; while apprenticeships and the paralegal shortcut mean people can now enter the profession without a degree or a training contract.

This lack of consistency has two consequences, Brannan says. ‘There is the risk people are qualifying as solicitors who haven’t demonstrated that they are safe to be let loose on the public, while it is difficult for those coming through non-traditional routes to demonstrate they are of equivalent standing. This suggests all intending solicitors should take the same test.’

Murray-Jones says the Society supports a centralised exam in principle. ‘I have a lot of sympathy with what the SRA is trying to do,’ he notes. ‘There is an unspoken problem of people being signed off who aren’t up to standard.

‘But we then get to the problems. The SRA is saying candidates won’t have to complete any particular course before taking the exam but then says that the exam will be set at degree level, so it will be difficult to pass it if you haven’t been educated to that level. We don’t accept that. You can’t examine at graduate level – that is a nonsense. You teach at a graduate level.

‘If you look round the world we already have one of the least demanding set of criteria to become lawyers of anyone in the [Organisation for Economic Co-operation and Development]. We are worried what this will do to the reputation of solicitors and are disturbed the SRA is not, on the face of it, concerned about that.’

A system which has entirely unregulated providers of education and training courses seems to be a ‘fairly startling’ proposition, agrees Caroline Pearce, chair of the City of London Law Society training committee and head of knowledge management and training at Cleary Gottlieb Steen & Hamilton’s London office.

She argues: ‘Without prescribed pathways and requirements, there is a greater danger that courses will be driven by cost and the need to get students through the centralised assessment rather than giving them the wider base in the law that the current regime does.’

For Peter Crisp, dean of BPP University Law School, it is a ‘bit rich’ of the SRA to blame inconsistent standards when it ‘abnegated its responsibilities as regulator’ by stepping back from monitoring courses and providers.

‘I am not convinced the SRA has correctly identified a problem to which this is the solution,’ he says. ‘I don’t see what benefit there is to the profession – this entirely benefits the regulator by making it cheaper and simpler for them. This will not do anything to improve standards in the profession.’

Crisp’s preferred option would be to deregulate the LPC and turn it into a masters degree in professional legal practice, leaving it to providers to design the programme, validated by the SRA.

‘My question to the SRA is: do they genuinely believe this will produce better lawyers? Hand on heart they can’t say that.’

Other jurisdictions, he says, already perceive we have a ‘lighter-touch’ approach. ‘For the SRA to say we want to make it even easier to qualify – just pass these assessments, prepare for them how you want, you don’t have to do any formal education or training, just buy some books, go to some fly-by-night test prep provider and get the label solicitor – risks damaging our international reputation.’

Helen Hudson, head of postgraduate professional courses at Nottingham Law School, also fears there will be reputational damage if there are no clear, transparent prescribed pathways to qualification. It will also made recruitment decisions harder, while the SQE is likely to ‘increase the cost of qualifying without driving up standards’.

So what does it mean for existing courses? With the current cost of qualifying as high as £46,750, the SRA ramps up its case by claiming aspiring solicitors will save £12,500 by not having to do the LPC or the Professional Skills Course.

However, none of those interviewed believe it will be a cheaper process. The SRA has yet to cost the exam, while ‘you would have to be an idiot’, Murray-Jones says, to embark on the assessments without taking preparatory courses.

Richard Moorhead, professor of law and professional ethics at University College London, Faculty of Laws, says there is the potential to absorb some of the cost by way of self-study and through new ‘nearly practice-ready’ law degrees: ‘But I am not sure that, with the skills and knowledge assessments as broad as they appear to be, costs will reduce that much.’

Professor Nigel Savage, long-time advocate of a radical approach to legal education and training, sees some positives: ‘If someone takes a law degree and then can’t pass the Part 1 knowledge test of the SQE, there is something wrong with the law degree. What this will do is massively improve standards for students who are currently being short-changed in teaching at the big universities.’

Undergraduate law schools are taking on huge numbers and they cannot ignore preparing students for the tests, he says, not least because league tables will undoubtedly emerge. ‘Overseas students will also want a slice of the action as the English qualification becomes more accessible. To that extent, it’s a fantastic opportunity for law schools to recruit more international students.’

Savage, who retired from the University of Law (ULaw) in 2014, says the changes should have been made five years ago, though he acknowledges he might not have been so supportive had he still been chief executive.

‘The market has moved on and legal education has yet to catch up with the reality of practice. The proposals will require changes in the business models of the two big providers, as happened when the LPC was introduced. New providers will undoubtedly emerge because it is always much easier to start from scratch.’

Universities will have to rethink what constitutes a law degree, says Professor John Flood, visiting professor of law at the University of Westminster and now professor of law in Australia.

‘At present, it pretends to be both “liberal” and “practical” when it is neither,’ he notes. One question will be what regulators in other jurisdictions do. ‘Will universities in Europe who now offer their law courses in English attract more students? They’re cheaper and, if you qualify in the EU, then establishment and transferability operate, assuming no Brexit.’

He also hopes the LPC will go, as it is now ‘just a cash cow’ for some providers.

However, Crisp hits back at criticism of the LPC: ‘I have spent the last 15 years of my life tweaking the LPC to ensure it produces a trainee who is useful on day one of their training contract. The notion that law firms will want students arriving knowing substantially less than they do now is risible.’

Hogan Lovells’ Grant also feels the current regime works ‘pretty well’ for the big firms. There is an ‘enormous irony’, she says, in that having allowed firms to develop the bespoke LPC, ‘the SRA is now arguing that we need to go back to a single system because levels of quality are too variable’.

For Amanda Fancourt, LPC senior lecturer and programme director of the LLM in Legal Practice at City Law School, the SRA’s logic of using SQE pass rates to encourage competition between different providers is dangerous: ‘First, it encourages teaching to the test approach. Second, this may mean providers will not take chances and will only accept the apparently best, brightest and, no doubt, most privileged students.’

What will be challenging for providers will be designing new courses in time for the 2018/19 academic year when the framework assessment for the SQE will not be published before the end of this year.

Dr Giles Proctor has experience of the economics of legal education. He was dean of law at Kaplan, which has pulled out of legal education, though it remains the exclusive provider of the QLTS assessments. He is now head of the new law school at the University of Roehampton in south-west London, which took in its first 37 LLB students last September and will be offering the GDL from this autumn.

Proctor says universities with very practice-focused courses are likely to offer preparatory courses for Part 1 of the SQE in the final year of the degree or as a module afterwards. ‘Some liberal arts law degrees will leave it to students to go and study for it with another provider but most may think it is an easy revenue stream so will do it in-house,’ he predicts.

So what will the exam – which the SRA says will require all candidates to demonstrate ‘a level of intellectual and analytical ability at least equivalent to that of a graduate’ – include?

Part 1 will be ‘generic’. It will have to be passed before candidates can take Part 2 to stop anyone unlikely to pass wasting time or money. The assessments for both parts will be modular so students can split them while they work and study.

It is the content of Part 2 that is more contentious. As the title of solicitor confers the right to practise in reserved areas, the SRA favours focusing the contexts for the assessments on those four areas and on the ‘law of organisations’ – business law and practice. Each skill area must be assessed twice, in at least three of the five contexts, one being contentious and one being non-contentious.

Other options include focusing on reserved activities but recognising the different legal areas involved, so candidates could take an assessment in a specific context such as white collar crime or domestic conveyancing. The second would be to offer a broader number of contexts such as corporate finance, family and employment, though the consultation paper suggests this would be more expensive.

Professor Andrea Nollent, provost of ULaw, is no fan of the proposed balance of content: ‘The legal knowledge expectations are onerous and burdensome while the Statement of Legal Knowledge is longer than the competence framework, leading to the inevitable inference that what a student knows is more important that how competent he/she is.’

She cannot picture the future without an LPC-style qualification ‘but I would accept that students who have developed the knowledge and skills required, through education, workplace learning or an apprenticeship, should not have to take the whole programme. Our plan is to be able to offer required modules on a flexible modular basis, so students can take whichever courses they need to fill their knowledge and skills gaps’.

One consequence of a centralised exam is the profession will have to come to terms with higher failure rates.

Brannan says deciding how many retakes to allow is tricky: ‘There is evidence that if you take an assessment more than four times, you are very unlikely to pass. The question for us is whether we need to have a more stringent resit requirement.’

That need to give the exam credibility has prompted the SRA to acknowledge that it might need to set eligibility criteria, at least initially. It has also listened to comments from the profession that there must be some form of pre-qualification workplace experience, though that is likely to look very different to the existing two-year training contract.

One option could be new workplace assessments. Leanne Maund, chair of the Junior Lawyers Division, says that could help resolve inconsistencies in the level of training provided.

Sue Harris, director of Leeds-based Walker Morris and vice-president of Leeds Law Society, says firms prepared to take on trainees should make more checks on their progress. ‘After all, firms take on people who they want to be part of the future of the firm so we have appraisals at the end of each seat – six over the two years – and provide regular internal training.’

However, she questions when firms used to recruiting after trainees had completed their exams would take on trainees and what the extra costs would be. Having trainees go on study leave for courses to pass the assessments could also be disruptive.

Another key issue is who will win the tender to run the SQE. It will have a captive market of around 5,000-plus candidates, based on annual figures for LPC, QLTS, paralegals and solicitor apprenticeships, although candidates could take several years to complete all of the assessments.

The SRA anticipates having one supplier, though it says it will consider appointing a consortium with a lead organisation.

With under two months of this stage of the consultation left, Brannan urges all stakeholders to engage with the process: ‘This is not about us making life easier for ourselves. There are concerns about standards and we wouldn’t be doing our job properly if we didn’t take those seriously. It is our job as regulators to make sure reality lives up to reputation.’

Grania Langdon-Down is a freelance journalist