CHULS Response to the SRA's Second Consultation on Training for Tomorrow

CHULS response to the SRA's second consultation on Training for Tomorrow.

The Committee of Heads of UK Law Schools is pleased to present its response to the Solicitors Regulation Authority's second consultation on its proposals to introduce a new, centrally assessed process for qualification as a solicitor, the SQE.

We would state at the outset that we have no objection in principle to the SRA seeking to introduce a centralised assessment, and recognise the SRA's right as a regulatory body to regulate training for and entry to the profession in whatever way it wishes. However, we continue to have general and specific concerns about the proposed assessment as detailed in the consultation paper. These concerns include:

• Assertions have been made about the lack of consistency and rigour in the current qualification process, (for example, in the diagram on page 9 of the consultation paper) but no objective evidence appears to have been provided for these assertions, that we can evaluate. We have not yet been convinced that there is a problem which needs to be fixed in the manner outlined.
• The consultation paper suggests, at paragraphs 36 - 37, that there may be some correlation between the current method of qualification and indemnity insurance claims / complaints about solicitors, but admits that no causal link can be proved. The evidence presented only relates to recent years, and to be meaningful as an indication of deteriorating standards would need to be set against comparable information from the period before the introduction of the LPC when there was a centralised assessment.
• There appear to be assertions being made about the rigour of the proposed SQE which it is impossible to evaluate, as no assessments have yet been devised and so cannot be scrutinised.
• The assessment as outlined runs the risk of 'dumbing down' the depth of knowledge required to become a solicitor, and this could result in loss of public confidence in the solicitors' profession.
• The English and Welsh solicitor is a brand which is highly respected internationally and we would be disappointed if that respect were to be diminished, for the same reason.
• We remain less than confident that the new process will result in any cost savings, thus doing little to widen participation. We are also concerned that those from wealthier backgrounds will be more prepared to take the risk of an assessment for which there will be no regulated preparation or training, and we do not wish to see the development of a two-tier profession.
• We are concerned that young people will feel obliged to make career choices at an even earlier age than at present.
• We would like to see evidence of the SRA's experience in the procurement of an assessment process at this level and on this scale and are concerned that the procurement process could fail to deliver a useable assessment.
• The proposed timescale does not seem to us sufficient to create sufficient banks of both practice and assessment questions.

Our broad responses to the questions in the consultation are set out below.

Question 1: To what extent do you agree or disagree that the proposed SQE is a robust and effective measure of competence?

We have asserted that we believe that the solicitors' profession should be one of graduate entry. This does not necessarily mean that would-be solicitors must have a law degree, but we cannot envisage a person who does not possess a degree level qualification or equivalent having the intellectual depth or high level cognitive function being able to cope with the rigours of solicitors' practice. We are therefore pleased to see that the SRA has now said that graduate level education (or apprenticeship, which we assume means at level 6 or 7) will be a pre-requisite.

However, at present we do NOT have confidence that the proposed SQE will be a robust and effective measure of competence. Without seeing examples of the proposed assessments at both levels, it is impossible for us to comment in detail, but we have concerns that:

The proposed methods of testing for SQE 1 are too superficial and, unlike a law degree plus LPC (or degree plus GDL plus LPC), will not permit the testing of a wide range of degree level skills. SQE 1 may provide an adequate test of knowledge (but as mentioned above, we would need to see some examples to be sure), but not of the types of competence needed for a practicing solicitor, such as the ability to analyse situations, to evaluate evidence and make judgements. Paragraph 54 of the consultation paper asserts that computer based testing is successfully used in other professions such as medicine and pharmacy; but this comparison is disingenuous, as the assessments mentioned in those other professions are taken in conjunction with mandatory degree or postgraduate level education.

The consultation paper suggests that candidates may take SQE 1 before completing their work based learning, with SQE 2 being taken at the end of the work based learning period. It is stated that SQE would include a test of legal research and a writing test. At present, it is normally not possible to commence a training contract without completing a law degree or equivalent and the LPC. Many firms require this level of qualification even for paralegal roles. It is therefore unrealistic to expect that firms will want to take on employees who are even less well educated and trained than at present.

We are concerned that SQE 2 may be too narrow; the removal of electives will mean that successful SQE completers may not have the breadth of knowledge and skills needed for practice. Those wishing to practice in, for example, Family, Consumer, Employment, and Immigration law, to name but a few, will be put to greater expense in paying for additional training in order to gain employment.

Given that there are various 'reserved' areas of work which are the province of solicitors, we are confused as to why the SRA considers it appropriate that a person could become a solicitor with no testing whatsoever of their practical ability to conduct work in all of those reserved areas. As currently proposed, a candidate could pass SQE 2 having taken assessments only in non-contentious areas, and the next day appear in court for a client. One of the reasons for the introduction of the LPC was to ensure that students had practical competence in all the reserved areas, and we are concerned for consumer safety if the proposal for only two areas of practice is implemented.

Question 2a: To what extent do you agree or disagree with our proposals for qualifying legal work experience?

In principle, we welcome the concept of widening the number of contexts in which work based learning can be experienced. However, we are concerned that it appears that there will be no monitoring of qualifying legal work experience (QLWE). There are criticisms that the current training contract is insufficiently supervised or monitored by the SRA but we are not sure that the removal of almost all regulation is the way to improve this situation. We are unsure as to the value of making an entirely unsupervised and unregulated period of QLWE part of the qualification process, and it is our view that the proposals as currently set out do nothing to promote consistency or quality of experience.

It is common ground that there currently is a mismatch between the number of training contracts available and the number of LPC graduates. Allowing would-be solicitors to gain QLWE in other contexts may seem at first glance to be a positive move which would widen access to the profession. However, our experience is that one of the reasons why firms do not offer training contracts is that they require considerable investment from the firm in terms of time spent in supervision and training. Lack of regulation of QLWE could encourage firms and other bodies to take on 'trainees' with no real commitment to their training and development.

Question 2b: What length of time do you think would be the most appropriate minimum requirement for workplace experience?

We believe that the current requirement of 24 months is about right. However, we need further clarification as to when the SQE stages 1 and 2 could / should be taken - for example, we assume form the paper that a candidate could take SQE 1 before any QLWE is undertaken; could that person then take SQE 2 after, say, six months of QLWE, and, if so, would this mean that person became a qualified solicitor immediately after passing the assessment, thus bypassing the QLWE requirement?

Question 3: To what extent do you agree or disagree with our proposals for the regulation of preparatory training for the SQE?

Whilst we can understand why the SRA takes the view that deregulation of the training process may allow for greater innovation in training offered, we have serious concerns that the market could become taken over by unscrupulous training providers with an eye only to profit and with little regard for the quality or appropriateness of the training provided. Anecdotal evidence suggests there is, for example, already some concern about the variability of the currently unregulated QLTS training, and of course the SQE would be a much bigger market. It would also potentially be a very different market than that for QLTS training which is by definition only offered to qualified lawyers; SQE training may conceivably be offered to relatively inexperienced or vulnerable 18 year olds.

We believe that one of the SRA's aims is to make the profession more accessible to people of all backgrounds, and arguably reducing the cost of qualifying will contribute to this. However, we do not believe that the cost of the SQE and preparatory training will result in any significant saving - in fact the process could become more expensive. Lack of regulation of training could exacerbate this problem.

Question 4: To what extent do you agree or disagree that our proposed model is a suitable test of the requirements needed to become a solicitor?

We disagree that the proposed model is a suitable test of the requirements needed to become a solicitor for all the reasons set out above.

Question 5: To what extent do you agree or disagree that we should offer any exemptions from the SQE stage 1 or 2?

Whilst we can to an extent see the logic of not offering exemptions, we have concerns that this will result in additional and unnecessary costs to potential solicitors. Education to degree level is a pre-requisite for the SQE, and if that degree happens to be in law, we see no logic in expecting those who have already taken and passed relevant assessments having to take more assessments.

There are also individuals qualified to appropriate levels by recognised and rigorous routes for whom it seems illogical to expect them to take very comparable assessments to those they have already passed; for example, barristers, CILEx fellows, and licensed conveyancers.

Question 6: To what extent do you agree or disagree with our proposed transitional arrangements?

We are concerned that the proposed timescale for change remains very challenging. Many individuals have already embarked on their route to qualification and it is very important that none of the expense and effort that they have already incurred should be in vain, so our main concern about transitional arrangements is that they are both very clearly set out and very clearly communicated to current students.

Question 7: Do you foresee any positive or negative EDI impacts arising from our proposals?

Whilst the proposal for widening the scope of QLWE could be (cautiously) welcomed subject to the concerns expressed above, we are concerned that there could also be negative EDI effects to these proposals, as follows:

• We are not convinced that the cost of the new scheme will be significantly less than the current regime and we are concerned that lack of regulation of preparatory training could push costs up.
• Whilst very highly qualified students from the traditional universities may continue to be employed by the larger city firms, who will continue to provide good, bespoke training, the widening of the scope of QLWE might encourage less diligent employers to take on employees without providing appropriate training, to the detriment of those employees, who may well be from less advantaged backgrounds in the first place.
• The proposed lack of exemptions might disadvantage those wishing to enter the profession from non-traditional backgrounds - for example, those lawyers who have qualified as mature students through the CILEx route and now wish to bring their usually considerable experience to the solicitors profession.

9 January 2017