Getting it All Wrong! Legal Education and the SQE
Tony Bradney said (in his recent Law Teacher article): ‘Only if law schools choose to align their teaching with the new examination, if law degrees become degrees to become a solicitor, will the SQE have an influence on law schools’.
I’ve been thinking about this a lot because it is a really important point and one which seems to be getting lost somewhere. As I have been thinking about this anyway and the SQE madness has been whirring away at the back of my brain somewhere, I was delighted to accept an invitation to go and speak about it at the Law School at Newcastle University today. As usual I was utterly useless at following my notes and am now just as useless at remembering what I said but below is a brief outline of roughly the argument I was going to make. I am not sure what it adds to the things I have said elsewhere recently but maybe it is useful nonetheless
- What is the SQE?
Well this is relatively well rehearsed I think and yet I am always surprised that there are people who really should know, who do not. That wasn’t the case in the audience today so I didn’t have to explain. Let’s be clear though, the SQE is not a new course or qualification as such. It’s just an exam. It’s a 2 part exam with part 1 testing legal knowledge and its application in 3 MCQ tests and then some legal research and writing and part 2 testing some professional legal skills like advocacy, client interviewing, drafting etc. In order to qualify as a solicitor the SQE is one of 4 requirements, the others being a degree or equivalent level qualification, being of suitable character and a substantial period of work experience. The slides from a recent SRA event hosted by Coventry University are quite useful at providing an outline
- Why reform the route to qualification?
Excellent question. Maybe simply because there always seems to be someone who thinks something should change. Maybe simply because we have review after review after review after review of legal education and training. Maybe because someone somewhere in the SRA (or elsewhere) had an idea and nobody who heard it said ‘just hang on a sec, let’s think this through’ or maybe because the proposed changes fit a neo-liberal market driven and status quo protecting agenda. The original rationale appears to have been based on three main issues though: Widening access to the profession, protecting consumers of legal services and complaints about the quality of graduates and the varying standards across the education and training providers (see all the Training For Tomorrow consultation documents etc). I don’t find any of those points particularly convincing. The Legal Education and Training Review (LETR) didn’t find too much wrong with legal education and training. It rightly notes that the cost of qualification was high and thus a barrier to access. It made some other recommendations all of which had potential for good, bad or indifferent regulatory outcomes. Chris Ashford and I wrote about that in a 2014 paper published in the Law Teacher (give me a shout if you don’t have access). There is nothing in the LETR which suggests the need for SQE though so let’s look at the 3 points underpinning the rationale in a little more detail.
- Complaints about the quality of graduates
I find this irritating. The evidence is weak. The claim is based on pretty selective consultation and anecdotal evidence from a pretty narrow range of employers as far as I can tell. I am not aware of any systematic research which assesses the quality of graduates in any methodologically rigorous way. If it exists please point me in the right direction. Also what does quality of graduates mean? I think there are a number of things going on here. I think it is pretty clear that graduates now probably have a different relationship with knowledge and a different set of skills than I had when I graduated. Things have changed. Knowledge is easily accessed. Everything can be looked up quickly. As the ever wonderful and on point Becky Huxley-Binns once said: ,It’s not that our students don’t know shit, they just know different shit’. I agree and they can do different things too. So to some extent employers need to refocus and ask whether the knowledge and skills they are saying graduates don’t have might actually be knowledge and skills that, while valued by them, are actually pretty outdated. In addition it might be worth thinking about what we could and couldn’t do and did and didn’t know when we graduated. Were we really as perfect and fully formed as we now think we were or did we maybe have some of the same weaknesses we are now so critical of? A slightly different point relates to the extent to which the skills apparently absent are actually skills that graduates should already have – so are they skills we, as legal educators should be developing or are does the responsibility lie elsewhere? And finally, what exactly should our role be here – develop skills employers want now (and if so what are they), develop skills employers will want in the future (crystal ball anyone) or develop skills that are academic in nature and enable students to, in Nussbaum’s words ‘make their minds their own’? No prizes for guessing what my answer to that would be. In short I just don’t believe our graduates are as bad as some employers on some occasions like to make out and I certainly do not believe that this is a sector wide problem. I do think this is a fascinating area for research though!
- Consumer Protection
I have not (yet) unpicked the data here or even spent a huge amount of time working through it. Clearly the regulatory objective is to ensure that solicitors are safe to do their thing. Clearly complaints are one way we can look at whether or not solicitors are doing a good job (yes I know that doing a good job and being safe to practice are not the same thing). It’s not a complete measure and it leaves much unexamined. But one of the things the SRA did say early on in developing the SQE was that it will lead to greater consumer confidence and fewer complaints.
According to the SRA itself complaints centre on lack of communication, delay and not being kept informed. They are also concentrated in areas of Family Law, Wills and Probate and Conveyancing. I’m not yet really sure what that tells us (and aware of the very limited info given here) and it is of course true (as was pointed out in today’s seminar) that the lack of complaints about knowledge or competence is because people wouldn’t necessarily know and that the practice areas may simply be about volume of work. Nonetheless though I do not see how the SQE deals with the issues most often complained about. I also find it unsurprising that the general public, when surveyed, favoured a centralised assessment, particularly given the phrasing of the question they were asked. Of course people like the idea of solicitors having gone through the same test to assure a level of competence but it rather assumes that the test does in fact do that. I suspect that if you asked the general public if they’d like to get family law advice from someone qualified as a solicitor based on a standard test that did not include any family law the answer might be different.
- Widening Access
Oh yes, the SQE will widen access to the profession. It will level the playing field. Kathryn Dutton and I have written about why that position is indefensible nonsense. (Again shout if you don’t have access). To genuinely do that the route would have to be significantly cheaper than current routes and it simply isn’t (as the SRA recently admitted) and it would have to force firms to recruit on the basis of SQE scores (and somehow control for the different opportunities to pay for and access preparatory and crammer courses). Widening access to the profession, I mean genuinely doing so, so that even inner city council estate kids with ‘just about scraped a place at a post 1992 and then ‘got it’’ kind of backgrounds can get Magic Circle firm positions; so that opportunities are genuinely equal, will only happen if recruitment practices change dramatically. ‘They’ already think they are getting the brightest and the best. They already think they are recruiting on merit. Why would they change?
- Will the SQE work
No of course not. It will not address the real or perceived weaknesses in graduates. It will not offer any more protection for those of us who need to seek legal advice or other legal services and it will not widen access to the profession. On a more cynical note of course maybe it is working just fine. Maybe that’s the point. Maybe it serves an elitist profession well because it appears to level the playing field without changing anything at all. It makes entry to the profession the same for everyone without actually making it the same. It de-regulates undergraduate degrees while at the same time exerting phenomenal pressure on law schools to do certain things in certain ways (see Doug Morrison writing in the Law Teacher for a small example of this) and it promises consumer protecting and inspires confidence by promising a standard which is meaningless.
- Law School Responses
Law Schools vary in their response. Some are in panic mode feeling the need to respond but being unsure as to how. There is an element of knee-jerk and headless chicken chaos in some institution with half thought out ideas being implemented throughout curricula. There are others resigned to their perceived fate. Responding with a shrug of the shoulders and a ‘Well if this is what the SRA want then we have to deliver’, there are others still who are thinking about options and waiting to see what the sector does overall and there are one or two who see the SQE as an opportunity and are embracing it. Whatever Law schools are doing the individual response to SQE is often guarded as commercially sensitive information and shared in hushed tones and whispered secrets. Quite frankly, if it wasn’t so serious it would be really funny.
I’m with Tony on this. The SQE has no implications for law schools other than the implications each law school decides it has. We do not have to react to it at all. In fact I would argue we should not react to it. Law Schools are not just for wannabe solicitors. Law Schools are really good at teaching students to do all sorts of really important things like find, read, distil and analyse huge volumes of information, reason, argue, provide evidence from a variety of sources and use it to build arguments, write, be precise and specific, problem solve, think, really think. Why would we want to stop doing that? We should keep doing exactly that through our undergraduate and post graduate academic provision. If some law schools also want to jump in and provide crammer courses for the SQE and they have the expertise and staff to do so then so be it. But there is no reason at all why the SQE should have any influence at all over our academic provision. As law schools we should be much more fierce in protecting and (re)claiming our discipline. For more on this see Luke Mason on the recent Law Teacher special issue because he is much better at articulating this than I could ever hope to be
- So where does all that leave us?
I suspect that Julie Brannan was right when, at the ALT conference at Keele University about 10 months ago, she said that the SQE was coming. It still needs final approval from the Legal Services Board but, unfortunately, I think that will come. It would be too embarrassing to pull it now. However, reviews of legal education and training come and go. The SQE won’t work and it won’t be around for long – certainly not in its proposed form, because as my host today, Richard Mullender, noted in our conversation, bad ideas are usually found out. We need to start influencing the conversation and shaping the next review. We need to make clear what helpful and effective regulation of legal education and training might look like. We need to drop egos and agendas and start talking about what the issues are, how we work together and how we start respecting each other’s expertise. Maybe the SRA has gone rogue and lost its way. Maybe. Maybe it is doing exactly what some think it should with exactly the outcomes they want. Maybe. For those of us who are deeply worried about the SQE future, we missed our chances to stop this madness but we do have the chance to shape the debate and the future beyond the madness that is SQE.
GETTING IT ALL WRONG! – The slides from the seminar if you want some silly pictures to go with the narrative
Why I won’t stop going on about the SQE
So there we have it – the introduction of the Solicitors Qualifying Examination (SQE) has been pushed back to 2021. No surprises there really, we could have told the Solicitors Regulation Authority (SRA) ages ago that there is no way they’d be ready by 2020
Anyway, people keep telling me that this is happening, that I just have to accept it and that we just have to get on with it. Well, no, no and no. While it does seem like the SQE is indeed coming, final approval for the assessment is still required from the Legal Services Board. I desperately want them to grow a backbone and declare that a qualifying examination which is likely to harm widening participation, disadvantage already disadvantaged potential solicitors further and write any ‘poor people’s law’ out of education and training for solicitors completely is just not good enough. Come on, we’re better than this utter nonsense. We can do better. We don’t need to kills aspiration and crush a generation who could make a real difference in the world.
Anyway, even if the SQE is coming, I do not have to, nor will I, just accept that. I will keep shouting about it. I will keep telling anyone who will listen (or who won’t, don’t care) why I think it’s a disaster. It promotes a skewed and, I would suggest, harmful conceptualisation of law. Luke Mason has written about this in his contribution to the forthcoming Special Issue of the Law Teacher: The International Journal of Legal Education. In the same issue Doug Morrison highlights the risk the SQE poses to creativity within the law curriculum and Elaine Hall teaches us a thing or two about robust assessment – which the SQE is not. Kathryn Dutton and I wrote about widening participation. These articles alone give you plenty of reasons to scrap the SQE as proposed and go back to the drawing board or at the very least for Law Schools to ignore it.
Let me be clear. I find this hard because I find it hard to justify why I am even remotely interested in the SQE. I don’t care about the professions, I don’t teach/train/whatever future lawyers much less solicitors. I, on a good day anyway, help people learn about law, help them to think, help them to articulate those thoughts and to write and argue and evaluate and use information to form a view and build and argument. Then I want them to go away and make the world a better place and some will do that as lawyers but most will not. So I care, not because of the impact the SQE has on the profession (although I care at the level we should all care about the lack of legal aid lawyers, solicitors who know about family law or employment law or social welfare…) but because of the impact law schools are allowing the SQE to have on the undergraduate law provision.
As a sector we have fallen for the SRA’s ploy. They want us to do their work for them. They want us to train solicitors. University Law Schools are to train their students to pass the SQE. The SRA frees us from the shackles (not that they were particularly tight!) of the Qualifying Law Degree (QLD) for their purposes (but the Bar keeps it) and says they are leaving us alone to get on with things as we think fit but at the same time clearly expect education providers to pick up the SQE preparation. Why are we doing this? Some institutions clearly see opportunities here and others feel they have no choice because they need to continue to recruit high numbers of students. Seriously? You understand that we are lying to our students by selling them SQE ready programmes, yes? If the SRA insists on the SQE, we should leave them to it. As legal educators we should stick two fingers up at them and reclaim our discipline and our expertise. We work in Higher Education. Education people. Education!
The best thing we can do for our students in Post 1992s or lower ranked Schools generally is to provide them with a strong UG education which focuses on helping them to think, articulate, write and have confidence in themselves. If others then want to think about tagging on an SQE prep course, be my guest (but don’t expect me to contribute or be nice about it). I’m not suggesting we try and be like Russel Groups institutions – we’re different, we can, should and must offer different things to our students because generally our students are different and what we do can help bridge the gap life has created for some of those coming to us. What is that difference? Well that’s for each institution to articulate but it has to be based on an understanding of who our students are and how we can help them get to where they want to be.
Anyway, I started writing this thinking about the other part of today’s headline – the cost of the SQE is likely to be between £3000 and £4500. That’s just the exam. JUST THE EXAM. For what it’s worth I think the eventual cost will be at the top end of that or higher but even if those figures are correct, add a prep course and you’re squarely within LPC fee territory. So the only way the SRA’s insistence that the SQE route would be cheaper than current routes holds true is if university law schools prepare candidates for the SQE as part of degree programmes. But the SRA aren’t expecting that. Not at all. Not one bit.
So why won’t I stop going on? Because this shit matters. It matters to my students, it matters to the legal profession, it matters to society and it says something about who we are and what we value. I hope I am wrong about the SQE, I hope that those more optimistic than me are right but I’m not prepared to sit back and let the SRA get on with it on the basis that maybe I am being a bit dramatic about all this. Are you?
Roundtable on the SRA’s Superexam.
The Solicitors Regulation Authority held a roundtable to discuss the latest news on the Solicitors Qualifying Examination (SQE). Conveniently it was held at Leeds Beckett University so I didn’t have to go anywhere. Julie Brannan, Director of Education and Training at the SRA and Dr Eileen Fry, Director of the SQE at Kaplan who have been appointed to run the SQE ran the session.
I was hoping we might have a few more answers and I was hoping, against all hope I know, that things might not be as bad as I think they are. Hm. Anyway, let’s see if I can just tell you about it without actually raising my blood pressure. So Julie went first and outlined the SQE. There was nothing really new there. The usual 4 requirements come together in a puzzle, degree, SQE 1 and 2, character requirement and qualifying work experience. Julie confirmed that the requirements are not chronological. I’ve been thinking about this and while it might be true in terms of the regulation, logically they sort of are – or the logic of the SQE falls apart. If the degree or equivalent isn’t to come first then why have it at all? What would the point be of passing the SQE and doing the work experience and then do a degree… it’s odd. We also know that SQE 1 has to be taken before SQE 2. While the SRA say that the work experience can come at any point, they also say that the work experience only has to offer the opportunity to develop the skills required to be a solicitor because the SQE2 tests those skills. So logically then the chronology has to be degree, SQE1, Work experience, SQE 2 and the good character confirmation. Because if the work experience comes after SQE2 what’s the point of it given that the skills it is supposed to help develop have already been tested? I suppose what I am getting at is that the SRA talks about this being a really flexible pathway and you choose your own way through but in reality there are few pathways that make logical sense and when you start moving the order around the internal logic of the process falls apart.
So here’s where the blood pressure just won’t stay low:
Julie suggested that law firms currently use A-level grades to select candidates because they are the last reliable standardized test people take (She did say this was problematic because they were, at the time of application, old. This of course won’t change as A-levels are a way to filter out candidates and reduce the number of CVs an actual human has to look at – I have spoken several regional firms who use computer systems to filter out people so if you haven’t got three As your application will never actually be seen by a human… and if the SQE is pass/fail only then firms will still want to all back on something to rank them). So that’s a little annoying. There is the QAA Benchmark statement, we have external examiners, universities don’t just make it up as they go along, that’s before we look at the quite detailed rules about the LPC. That wasn’t the only worrying thing Julie said. She also said that the changes provided opportunities for education providers to ‘use their expertise to train their students for the SQE’. In other words the SRA is relying on university law schools to prepare students for an exam none of us really wanted in the first place.
So, about the exam itself – I was hoping for more information but really there was very little. Currently the thinking is that there will be 6 tests with 120 question each and the average time to answer the question was suggested to be about 1.8 minutes. That’s even worse than the 3 minutes previously talked about. Kaplan has paired up with Pearson to administer the test – there are lots of test centres across the country – apparently one within 40 miles of everyone. But that only applies to the written tests. The SQE2 tests will take place in far fewer centres because otherwise it’s too difficult to assure standardization and consistency.
I think the most shocking statement of the day was a response to a question about candidates with disabilities. Dr Fry said ‘You timetable for the bulk and then sort out the others’. So if you have a disability which might prevent you from taking all the tests within the usual timetable, don’t worry, Kaplan will sort you out – nothing like making you feel like the profession is welcoming to all. I do wonder whether they’ve ever heard of inclusive assessment design. It was a throwaway comment but I can’t stop thinking about it.
But anyway, it’s ok because Kaplan staff are solicitors who therefore understand legal education and practice – yes the cause and effect was implied in that way. Of course being a solicitor means that you know everything there is to know about legal education. I’m sure there are some extremely well qualified people at Kaplan but these flippant imprecise comments don’t help! Kaplan have of course been running the Qualified Lawyers Transfer Test (QLTS) since 2011 and that’s part of the problem. The sample questions they shared with us on the day were clearly QLTS questions – they must have been because they had the passrate data from them. But the SQE is not the QLTS and even if it were a similar kind of thing, we seem to have forgotten that the QLTS is hugely problematic and that anecdotal evidence suggests it’s incredibly stressful and a fairly awful experience. Kaplan were keen to stress the expertise on their advisory board – drawn from people who have Bar exam experience as well as experience from medical education but again we’re not comparing like with like. I am sure there are things that can be learned from those contexts but we need to acknowledge that the SQE context is different.
Dr Fry spent some time talking about Validity, Reliability and Accuracy which is all good but the validity of the SQE seemed to completely undermined by another of her throw away remarks. If the SQE is supposed to test what solicitors need to know and be able to do on day one then we presumably need to know what solicitors do on day one – except we don’t and Dr Fry commented that one day we might do a survey to find out. So the SQE cannot test what it is supposed to test because we don’t know what solicitors do on day 1. It’s all a bit silly.
The other thing that struck me was that there is this presumption that law schools will offer preparation and that many many legal professionals still misunderstand the SQE as a new programme rather than as an assessment. This baffles me and I need to think carefully about what this means. There will of course be providers who will offer courses to prepare for the SQE. The courses will be unregulated and many won’t be that good and we will be leaving those least equipped to navigate that market to take a huge a risk.
Anyway, actually there’s nothing new! It’s the same old same old and we’re just waiting for the SRA to figure out fees, transition period, exact format of the SQE and anything else they think we might need to know. Lovely.