In our update on the Solicitor’s Qualifying Exam (SQE) in September, a great many elements of the new Exams appeared to have been clarified, showing that aspiring lawyers’ faith in the new path did not appear to be misplaced; however, it was also highlighted that their final application to the Legal Services Board was still pending with a decision expected in Autumn. Reports are now suggesting this will be delayed until the end of October 2020, at the earliest, due to the need for ‘additional enquires’ from the Legal Services Board (LSB).
A Cause for Concern?
This delay comes from additional resistance from the legal profession in light of the SQE’s current design, submitted by the Solicitor’s Regulation Authority (SRA). In fact, there was a call from more than 4,000 academics in the legal field to reject the proposal to the LSB outright. Initially, the LSB had 28 days to approve the SRA’s application, but this has recently been extended to 90 days in accordance with paragraph 21(5) (b) of Schedule 4 to the Legal Services Act 2007. Whether this could be seen as a cause for alarm depends on your perspective. This may well just reflect the system doing its job and the LSB is to be lauded for taking such close account of the stakeholders to be affected by the SQE’s introduction, scheduled for next year. The extension notice from the LSB states:
“The SQE application represents a significant change of policy to the framework for admission as a solicitor in England and Wales that requires careful consideration by the LSB. It will be necessary for the LSB to make additional enquiries with the SRA so that the LSB may fully understand the impact of the proposed change for both consumers and the profession.”
The LSB now has until the end of October 2020 to make its decision, but with the weight of critics pressing down, will they grant it? Legal Academics represent one of the largest, and loudest opponents to the current form of the SQE. In fact, in a letter sent to the LSB in August, it was highlighted that:
“…that the SQE in itself, in the absence of a Qualifying Law Degree or Graduate Diploma in Law on the current pattern, is inadequate to provide sufficient protection for consumers and assurance to employers…”
They went on to argue that those questions published under the SQE1 model were too focused on whether the law was clear, with a skills element having been removed. In fact, “the only element involving uncertainty in SQE2 is an exercise where the candidate has to peruse legal materials provided by the examiners and advise a client, an exercise labelled ‘research’ but in truth very limited.” This does seem to echo our previous post’s slight concerns with the quality and challenge of the example SQE1 questions made available; however, it can still be defended from a broad-vs-deep assessment basis, which appears to be the SQE1’s goal. Arguments concerning diversity and the balance of access vs elitism are therefore harkened back to. Interestingly, though, the groups comprising the letter have advocated that “…that the increased uncertainty as to employability that arises from the abolition of recognised training routes, when combined with the likelihood of additional real costs, will tend to reduce rather than enhance diversity in the legal profession (Diversity).”
The letter goes on to say that it seems “clear” that passing the SQE without having studied law at either undergraduate, or postgraduate level, a student “will be unlikely to find employment as a solicitor unless they can rely on personal contacts”. No evidence, however, is given for this and there is an argument that this is unfounded. The SQE1, for instance, is intentionally broad in its testing so as to encourage higher legal education prior to it, and it seems exclusionary and presumptuous of legal academics, represented in the letter linked to earlier, to claim that a student converting to the legal profession will have no prospects. It is this very flexibility and open-ness of access that the SQE promotes; however, the lack of electives, confirmed by the SRA, does somewhat take away from a student’s choice. It is highlighted that “the existence of choice would have enabled candidates to focus in SQE2 on areas that reflected their qualifying work experience”.
Whether these responses represent grounded concerns, or merely natural hesitance by the old guard, remain unproven and this likely will be the case until September 2021, assuming the LSB gives approval for the SQE. The joint letter represents the concerns of the Association of Critical Legal Scholars, the Association of Law Teachers, the Committee of Heads of University Law Schools, the Society of Legal Scholars and the Socio-Legal Studies Association. There is an argument here that these groups may not represent the wishes of those generations actually studying, or preparing to study, for a legal career and so rooted in current practice and opinion.
The letter further suggests that a “sensible way forward” would be to retain the requirement for a qualifying law degree, or GDL, and to further reform the list of ‘regulated activities’. This would take into account “contemporary needs and restrict practice on an activity by activity basis to those who have demonstrated competence in that activity”. The broadness of the SQE and its almost foundational approach, does remove the option for specialisation which is a recognised reality of legal career development. It would seem that to move into a specialised area, such as corporate law or human rights, a student would have to show themselves as having acquired such experience through the SQE’s work experience options.
It may well be that a middle ground might need to be struck here to better serve those wishing to enter the legal profession and those firms seeking to protect their clients and the quality of their applications. It is not contested that high, consistent standards should be ensured, and the Law Society, in its letter, supported this SQE objective, but some give is either needed by those accepting new lawyers through this path in the future, or the very exam that seeks to grant them entry. As a final note, it is good to see the grounded recognition by the Law Society of the risks to social mobility due to the current lack of funding available for SQE costs, as well as for disabled students through the Disabled Students Allowance. Continued lobbying for changes here to give this support and to encourage this diversity is needed by both the Law Society and the SRA.
Such a small update on the seemingly inexorable progress of the SQE belies its potential impact. We will have to wait until the LSB’s decision at the end of October to see what they will advocate and whether the SRA will have to go back to the drawing board, so to speak, to better represent the legal industry and its academics. Further to this, with the global Covid 19 pandemic rumbling on in the background, further clarity as to impacts on qualifying experience should be given to assuage fears for those aspiring lawyers seeking to advance in 2021. As ever, do let us know your thoughts on this development, and we will continue to provide updates as they come.