The Solicitors Qualifying Examination: everything we know so far
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A new ‘super exam’ which all prospective solicitors will need to pass in order to qualify is set to be introduced by 2020, replacing the current system as we know it. The new Solicitors Qualifying Examination is a test designed to ensure that all solicitors are at the same high standard at the point that they qualify, whether they have taken the traditional route of gaining a university degree before progressing onto postgraduate training or an apprenticeship. However, the proposals are controversial.
Not so long ago, the only way to become a solicitor was to go to university, emerge with a degree and then complete the postgraduate course(s) necessary to be eligible for a training contract with a law firm. But this has all changed in recent years – broadly, there are now three possible routes which all lead to qualifying as a solicitor:
- an apprenticeship;
- the traditional path of university study followed by a formal training contract; and
- the ‘equivalent means’ route, where university and Legal Practice Course (LPC) graduates gain enough legal work experience to match the experience that would be gained during a traditional training contract (for example, by working as a paralegal).
The new routes are welcome additions and should make the solicitors’ profession more accessible, particularly to those not attracted by the idea of full-time university study and the fees which that involves. However, the body in charge of overseeing all this, the Solicitors Regulation Authority (SRA), has said that there is a need to ensure that all qualifying solicitors are exactly at the same high standard, regardless of which path they take. It has decided that the best way to do this is to introduce a new Solicitors Qualifying Examination (SQE), which will be the end point of each of the three routes and will have to be passed in order to qualify.
Why is the SQE being introduced?
The SRA believes that under the current arrangements, the public may compare the new pathways unfavourably to the traditional university route. The new ‘super exam’ is intended to dispel any notions that one route is better than another, as passing it will enable all qualifiers to “demonstrate a level of intellectual and analytical ability at least equivalent to that of a graduate”.
The wide variety of courses that make up the university route may also support the SRA’s argument that a new assessment is needed to ensure consistently high standards. Over 100 academic institutions offer law degrees, while approximately 30 each teach the Graduate Diploma in Law and LPC, with many of these providers setting different entry requirements and assessment methods for their courses. The LPC especially has diversified; it was previously a fairly standardised qualification, but LPCs at different institutions can now differ significantly due to firm-specific training requirements – where a firm prefers all of its future trainees to complete the LPC at a certain provider – and different course lengths.
The SRA has acknowledged the difficulty in establishing concrete links between course variation, public confidence and the ultimate quality of lawyers when they qualify, but has said that “there is evidence which suggests the standards of service and quality of legal advice sometimes fall below the level that can reasonably be expected by consumers. In each of the last four years, around 18% of firms faced a negligence claim, and about 10% of firms paid out on a claim. In 2014-15, over 800 complaints against solicitors [were] upheld by the Legal Ombudsman”.
The four elements for qualifying as a solicitor
The SQE will make up one of the four elements that make up the process of qualifying as a solicitor. Those four elements are:
- gaining a degree or equivalent qualification;
- passing the SQE;
- completing two years’ qualifying legal work experience; and
- passing the SRA’s character and suitability test.
The only new element is the SQE – the other three elements are all essential for qualifying as a solicitor under the old system. However, the work experience requirement has been made more flexible so that various types of legal work experience, such as sandwich placements while at university, may also count toward the two-year total. This will reform the current system where qualifying work experience for most candidates takes the form of a two-year training contract with a law firm. The SRA believes that making this requirement more flexible will enable more people from a more diverse range of backgrounds to become solicitors.
In addition, prospective solicitors will no longer be required to experience both contentious and non-contentious work during the period of qualifying work experience, although the SQE will still test on both areas.
What will the SQE involve?
The SQE will be the graduate-level assessment for all pathways into the solicitors’ profession. This means that assessment will now be separate from and independent of training, whether that training takes the form of a law degree, the LPC or a potential replacement course, or a solicitor apprenticeship.
The SQE is formed of two stages, each of which will be divided into separate modules, which will enable the SQE to be integrated into other education and training courses, such as those mentioned above. It will be assessed on a simple pass/fail basis.
Below is an outline of all the areas that the SQE will assess, but be aware that the balance between skills and knowledge assessments in stages one and two is still being looked at.
Stage 1: functioning legal knowledge assessments
Stage 1 of the SQE will cover ethics and professional conduct, wills and probate, taxation, business law and practice, property law, torts, criminal law and evidence, criminal litigation, civil litigation, contract law, trusts and equitable wrongs, constitutional law, EU law, human rights, and the English legal system. Stage 1 will also include one practical skills assessment, with candidates able to choose between legal research and writing skills.
The different areas will be assessed in separate modules, apart from ethics and professional conduct, which will be examined by “unflagged” ethical components to questions throughout. The SRA envisages computer-based testing as the main method of assessment, which is consistent with other professions such as medicine and accountancy. Stage 1 must be fully completed before progressing to Stage 2 – and the SRA expects that candidates will complete SQE Stage 1 before starting the two-year period of qualifying legal work experience – although it has said that this will be “up to the market”.
Stage 2: practical legal skills assessments
Stage 2 of the SQE will focus on the practical skills that solicitors need in their everyday work. These include interviewing and advising, advocacy and oral presentation, negotiation, writing, drafting and legal research.
Methods of assessment are expected to involve practical tasks and simulations, including roleplay. Each practical skill will be assessed twice, in two different practice areas or contexts. Those practice areas will be civil litigation, criminal litigation, property law and practice, wills and probate, and the law of organisations. Candidates will have to cover both contentious and non-contentious areas in the course of the assessment. Again, Stage 2 will be structured over separate modules.
It is worth repeating that the SRA expects many candidates to take SQE stage 1 before a period of work-based experience (eg, a training contract), and SQE stage 2 at the end of their work experience.
The SRA originally stated that no one should be exempt from the SQE if they want to qualify as a solicitor. However, it has since said that barristers and chartered legal executives may be exempt from elements of the SQE when making the switch to the solicitors’ profession. The SRA has also said that it will continue to recognise legal qualifications from the European Union and the rest of the world. However, future regulatory requirements for EU nationals to work in the United Kingdom are remain unclear due to the United Kingdom’s vote to leave the European Union, with no clarity on the matter provided since then. The SRA maintains that the “overwhelming majority” of those qualifying as solicitors in the future should complete both stages of the SQE.
What about trainees at specialist firms and other employers?
Many law firms and in-house legal departments are quite specialist, so would not be able to provide the breadth of experience required by the SQE. The SRA has said that in its consultations, some employers would be happy to help candidates fulfil the SQE’s specifications through secondments with organisations operating in different practice areas. However, others have pointed out that this expensive training would be of no relevance to their own businesses.
The SRA has suggested that assessment of the essential “reserved activities” that only solicitors can do could be set within general contexts that are relevant to what the candidate will be doing within his or her organisation, once qualified. It gives the example of a litigation assessment focusing on crime, civil, family or contentious probate.
Diversity and the cost of getting into law
The SRA rightly points out the obvious: that with many more expensive LPC places available than there are training contracts, it is the number of training contracts that determine how many and who can become solicitors. This also means that many candidates end up paying a fortune to complete the LPC for nothing, as unlike a law degree or the GDL, the LPC has no real transferrable value for other career paths. And although equivalent means has now emerged as an alternative to the training contract bottleneck, the reality is that only a small number of paralegals will have the experience to make them eligible for qualification. The SRA’s statistical analysis has led it to conclude that this ‘training contract barrier’ may in fact be negative for diversity in the legal profession. For example, it states that while 37% of law students and 32% of LPC students are from BAME backgrounds, people from BAME backgrounds make up just 24% of trainee solicitors.
If the SRA’s reasoning is correct, opening up other routes to qualification such as equivalent means and the apprenticeship pathway, which would be assessed by SQE, could help to open up the solicitors to profession to people from more diverse backgrounds.
The SRA also speculates that by removing the requirement that candidates complete the LPC and definitively separating assessment from training, becoming a solicitor could become cheaper. However, this is far from certain, as set out below.
Criticism of the SQE
The SQE has received criticism from many quarters, including top City law firms and academics.
Some firms are concerned that the overhaul heralded by the SQE will be disruptive to their hiring and training. Firms have also voiced fears that the SQE will not provide the specialist training needed to be an effective City lawyer in comparison to the LPC, where many firms have linked up with law schools to offer their own tailored LPC programmes which prepare future trainees for practice.
The SQE has also been widely criticised by academics and law schools, including the University of Law and BPP. Professor Richard Moorhead, a leading legal academic, has outlined serious concerns with the method of assessment set out in the SQE proposals. One of his major criticisms is that the SQE would potentially test rote knowledge (SQE stage one) long before candidates actually qualify, making its knowledge assessment of limited value. Moorhead also suggests that much of what the SQE tests will be irrelevant to a solicitor who is about to qualify into a specialised area of law.
Moorhead also argues that the SQE’s prescriptiveness in requiring candidates to cover such a broad range of areas would stifle the very innovation in legal education and training that the SRA desires. He states: “Sensibly defining knowledge requirements on a subject by subject basis as the SRA has done is a fool’s errand: it is way too over and under-inclusive to be useful.”
Melissa Hardee, author of The Legal Training Handbook, has raised several insightful criticisms of the SRA’s thinking on SQE. She points out that while the number of available training contracts is currently limiting the number of people who can qualify as solicitors, this is a “fact of life” resulting from supply and demand, rather than something to try to fight. Writing in the Law Society Gazette, Hardee argues: “What the SRA should be asking is whether law graduates have made an informed decision to study law, knowing the limited opportunities for training places available, and whether the numbers of law graduates are inflated by students who are not going to meet the required standards but who have been enticed onto law degrees by universities whose funding pressures require them to enrol as many students as possible on their law degree programmes?”
Hardee also points out that the SRA has made many of these problems for itself. Although it now worries about quality assurance and the cost of the LPC, it used to regulate both of these before inexplicably deciding not to anymore, so current problems can at least partially be laid at the SRA’s doorstep.
Critics have also argued that the SQE will surely be expensive for aspiring lawyers, although how offset this might be by students bypassing the costly LPC is unclear. It is certainly easy to imagine SQE crammer courses quickly emerging – charging who knows what – to help students pass the assessment. In fact, Moorhead has argued that introducing the SQE and separating assessment from the LPC will actually lead to a two-tiered legal education system – one tier being Russell Group universities and other leading institutions who seek to protect the value of the law degree and LPC to employers, particularly the top law firms which are set to continue favouring traditional training contracts, and the other comprising of all the other education providers who will basically cram students for the SQE. This may actually damage diversity in the profession more than the current system does, as Moorhead points out: “Unless the SQE assessment proves spectacularly successful at upsetting perceptions of law school hierarchy among law firms, then the SQE is likely to enforce a segmentation of the legal education market which will reinforce and exacerbate existing problems within the recruitment market for trainees.” Several leading universities and law schools have already said that they will continue teaching the LPC as a high-value qualification that is attractive to law firms.
The only way that the SQE will work, according to Moorhead, is if it prevents the segmentation of legal education by demonstrating clearly to firms that candidates approaching the profession via the SQE can be just as strong as those who top firms traditionally recruit from universities. Whether SQE will encourage firms to look beyond this narrow recruitment pool remains unclear.
The SQE is scheduled for introduction in 2020. August 2020 will also be the last chance for candidates to start the old route to becoming a solicitor. This also means that people in the process of qualifying the old way will still be able to do so for a number of years after 2020. An LCN source said that this arrangement could last until as late as 2030, but we are waiting for this to be confirmed or corrected. This means that nothing has to change for readers in the middle of or about to commence a degree – you will have the option to stay on the same route you are on now.
However, you should certainly stay updated about the SQE’s progress. An organisation to oversee the SQE should be put in place this year, while the exam will be developed and tested throughout 2018, so we will definitely learn much more over the next couple of years.
Brace for change
The SQE looks certain to overhaul legal education and training in the coming years. However, despite the SQE’s introduction being delayed from 2019 to 2020 and a number of amendments made since, this has not been enough to convince many firms and legal academics of the merits of a new ‘super exam’. We are now waiting to see how those concerns are responded to over the next couple of years and how the SQE will work in practice.
The current system produces excellent lawyers, but the legal profession remains sorely lacking when it comes to diversity, particularly social mobility, which is an issue that must be addressed. The question is whether the SQE would help, hinder or maintain the status quo in this regard. But whatever your opinion, the SRA is determined that the SQE is going to happen, so stay tuned as to how the situation develops over the next 24 months or so.