The Solicitors Regulation Authority (SRA) intends to introduce the Solicitors Qualifying Examination (SQE) in the autumn of 2021. The new exam aims to standardise and simplify the process of qualification as a solicitor in England and Wales through a centralised assessment taken by all prospective solicitors, regardless of their route into the profession. The SQE will therefore apply to all who wish to qualify in this jurisdiction, including practitioners qualified in other jurisdictions.
While there are inevitably challenges associated with the introduction of a new qualification process, this once-in-a-generation shake-up of legal education introduces greater flexibility into professional legal education and provides law firms with a welcome opportunity to rethink their own training provision.
Qualification as a solicitor under SQE
The SQE consists of two parts: SQE1, which is a knowledge-based assessment; and SQE2, which is a skills-based assessment. Despite this apparently straightforward demarcation, it remains unclear whether SQE1 will ultimately include a skills element (assessed through research and writing) as the results of the March 2019 SQE1 pilot raised questions about the validity of this aspect of the assessment. The SQE2 pilot took place in December 2019 with the results expected in June/July 2020.
SQE1 is described by the SRA as a test of ‘functioning legal knowledge’ and is anticipated to consist of two online multiple-choice tests (MCTs), each containing 180 questions. SQE1 tests both ‘black letter’ law and students’ understanding of how fundamental legal principles are applied to common practice situations. SQE1 therefore combines content traditionally studied across both the undergraduate LLB/Graduate Diploma in Law (GDL) and the Legal Practice Course (LPC), into a standardised, baseline assessment.
SQE2 can only be taken following successful completion of SQE1 and is anticipated by the SRA to be taken following a period of qualifying work experience (QWE), although this is not a requirement. Although intended to be more rigorous than the LPC skills assessments, SQE2 still assesses the same broad areas, including client interviewing, advocacy, legal research, written advice and drafting. A new case analysis element has been introduced which will also include negotiation.
Firms may view the SQE as an opportunity to cut their training budgets and opt to support new recruits through online, generic, desk-based training. While such training is invaluable in a busy professional context, it is unlikely to be sufficient for a law firm to be satisfied of the ongoing competence of its junior lawyers
As the purpose of SQE2 is to assess skills in a practice context, it is currently envisaged that candidates will be able to choose two relevant contexts within which to be assessed. Both the number of assessments and the element of candidate choice will be determined following analysis of the SQE2 pilot. The contexts are: dispute resolution, criminal practice, business practice, property, and wills and administration.
One of the most radical aspects of the SQE is that it can be taken with minimal formality. There is no requirement to have a law degree, there will be no regulation of preparation courses and, indeed, there is no requirement to complete a preparation course ahead of taking the assessment. Nevertheless, anyone wishing to be admitted as a solicitor will still have to have a degree or degree equivalent.
This lack of formality extends to the abolition of the training contract. To qualify as a solicitor, students must complete two years’ QWE.
Knowledge and competence
Firms currently recruit students who have either studied law or completed a law conversion course (such as the highly regarded GDL) before undertaking the LPC. Recruiters may question whether they can be assured of the same depth of legal knowledge in candidates who have passed the SQE, but not otherwise studied law. This has implications for firms when considering their competence obligations under the SRA’s Code of Conduct and may lead to firms recruiting only law graduates or – should they have the funds to do so – otherwise choosing to support non-law graduates through a modified form of the GDL ahead of sitting SQE1.
The SQE nevertheless provides an opportunity for firms to interrogate their existing trainee training programmes and consider what skills junior lawyers need in the 21st-century workplace. Significantly, the SQE will not assess topics currently covered in LPC electives that are valued by the profession. This means that there will be no specialist training other than the contextual skills assessments in SQE2.
Identifying training gaps is relatively straightforward; providing appropriate levels of training can be more difficult. Firms may view the SQE as an opportunity to cut their training budgets and opt to support new recruits through online, generic, desk-based training. While such training is invaluable in a busy professional context, it is unlikely to be sufficient for a law firm to be satisfied of the ongoing competence of its junior lawyers.
Firms should therefore carefully consider the pedagogic value of any online technical training that they introduce to ensure it is fit for purpose. It seems likely that the SQE will result in greater personalisation of learning through, for example, the application of learning analytics that collect data on each student’s performance as they prepare for the assessments. Such tools can provide students with feedback and enable them to focus their studies on specific areas for improvement. This approach, which has a place in both SQE1 MCTs and SQE2 skills preparation courses, can provide a template for the development of sophisticated post-SQE online training.
Nevertheless, in a post-SQE world, experiential learning opportunities delivered beyond the workplace will still be needed to ensure that future solicitors are developed as truly reflective practitioners who understand their own competency levels as the code requires. Individuals are most likely to succeed in practice if trained through an approach that blends online delivery with simulated, real-world exercises led by expert tutors. As such, law schools with significant experience of successfully delivering practitioner programmes are ideally placed to advise and liaise with firms that are considering their provision.
Qualifying work experience
The introduction of QWE is attractive for students who will no longer have to chase a limited number of training contracts. QWE can be obtained from up to four organisations, which could include vacation placements or work at university law clinics (such as our fully regulated teaching law firm, the NLS Legal Advice Centre).
QWE is also easier for firms to provide because, unlike training contracts, QWE will not be regulated by the SRA. Nor is there a requirement for students to undertake both contentious and non-contentious work, or to work in a specified number of practice areas.
The challenge for firms is to ensure that the training they provide is of a high standard. How can one firm be satisfied with the quality of a potential recruit’s work experience with a different organisation in the absence of SRA regulation, particularly where it is signed off by a non-practising solicitor?
Firms may also wish to consider the extent to which they would seek to limit seat rotation whereby junior lawyers only work in one department doing one thing. Such an approach risks producing solicitors who have not been trained to adapt to different work streams (markets change over time) and who, from a competency perspective, ‘don’t know what they don’t know’.
One way forward is for smaller organisations to pool resources in providing QWE opportunities and support one or more junior lawyers on a rotation scheme. By working as a consortium, the firms can agree both to recognise each other’s QWE sign-off as a mark of sufficient quality, and to provide a wider range of training opportunities.
Point of qualification
Two issues arise at the end of the QWE.
First, if a student is to sit SQE2 during the period of QWE, there is no certainty that the student will pass, making workforce planning extremely difficult. To overcome this, the reality is that many firms are likely to require SQE1 and SQE2 to be completed before QWE begins.
Second, what happens if a paralegal at a firm completes two years of QWE, successfully passes the SQE and satisfies the SRA’s character and suitability requirements? Is the employer obliged to pay the individual a solicitor’s salary for the work of a paralegal now that they are qualified? Probably not, but firms will need to think carefully about how they manage workforce expectations and distinguish between work that addresses the SRA requirements for QWE and other paralegal work.
The challenge for firms is to ensure that the training they provide is of a high standard. How can one firm be satisfied with the quality of a potential recruit’s work experience with a different organisation in the absence of SRA regulation, particularly where it is signed off by a non-practising solicitor?
Diversity
One ambition of the SQE was to improve diversity. The provision of a centralised assessment may go some way to assist diversity because the route into the profession becomes irrelevant. Provided that you meet the SRA’s ‘four building blocks of qualification’ – have a degree, pass the SQE, complete your QWE and satisfy the SRA’s character and suitability requirements – you can qualify as a solicitor; it does not matter whether you first qualified overseas, took the apprenticeship route, worked as a paralegal or completed a traditional training contract.
The reality may be less clear-cut. It is a high risk and potentially financially burdensome strategy to sit an assessment without first fully preparing for it, but preparation courses are inevitably going to involve costs. Those from more disadvantaged sections of society will potentially have fewer choices and they will be the ones most adversely affected by the gamble to self-prepare or to choose a cheap, ‘quick and cheerful’ preparation course.
Those with greater choices available to them will be able to avoid the gamble and elect to choose comprehensive preparation, placing them in a better position to pass the SQE and ultimately to secure employment. Further, while a market may emerge for an LLM SQE to mirror the existing LLM LPC and therefore be eligible for postgraduate funding, many students may prefer to undertake a shorter SQE preparation course. Perversely, due to the current funding regime, it could be those students who most need to keep costs down who will have no choice but to undertake a more costly course, while those not reliant on funding will have a greater choice including preparation courses that are cheaper as they do not involve the costs associated with a full LLM.
Brexit
Post-Brexit, the opportunities for England and Wales-qualified lawyers to requalify in an EU member state and so practise in the EU are likely to be reduced. This will probably affect the ability of English law firms with an EU foothold to work across the EU. If English law firms are to retain their market share within the EU, they may wish to consider training some of their locally qualified lawyers as English lawyers. One advantage of the SQE is that firms will no longer have to differentiate between the assessments for their home students (that is, those undertaken as part of the LPC) and their foreign lawyers, who are currently required to complete the Qualified Lawyers Transfer Scheme.
Conclusion
It is essential for law firms to understand the implications of the new arrangements for their recruitment practices because the SQE introduces the possibility of a much more flexible training process, both for firms and students. While this flexibility brings many opportunities, firms will nevertheless need to ensure that future recruits have obtained the necessary range of training and work experience to equip them for life in legal practice, as well as ensuring the recruitment of a diverse workforce. Firms must also recognise the importance of providing continuing support and development opportunities for their newly qualified solicitors to ensure their competence: passing the SQE is merely the starting point.
Professor Paula Moffatt is director of external engagement and Matthew Homewood head of postgraduate portfolio at Nottingham Law School, Nottingham Trent University
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