Phillips: SQE is untested and not without risk
The new way of qualifying as a solicitor, including passing a centralised, two-part examination, will go live from 1 September 2021 after the Legal Services Board (LSB) approved the reforms.
The final obstacle to the changes, the LSB concluded that, if the Solicitors Regulation Authority (SRA) realised its stated ambition, the changes should have “a positive impact on the regulatory objectives set out in the Legal Services Act 2007”.
The SRA’s primary objectives are greater assurance of consistent, high standards at the point of entry and the development of new and diverse pathways to qualification.
In future, to qualify as a solicitor, candidates will need to:
- Hold a degree, or equivalent qualifications or experience;
- Pass the Solicitors Qualification Examination (SQE): SQE1 (two exams of multiple-choice questions assessing functioning legal knowledge covering different subject areas) and SQE2 (a series of exams assessing legal skills);
- Complete a minimum of two years’ qualifying work experience (QWE). This could be completed with up to four different organisations and before completing SQE2; and
- Meet the SRA’s character and suitability requirements.
There has been continued opposition, particularly to the SQE, from legal academics and the Junior Lawyers Division of the Law Society.
The statutory test for the LSB when assessing changes to regulatory arrangements is a negative one, in that if they do not meet one of the grounds of refusal, the oversight regulator has to approve them.
The LSB said in its decision notice: “Whilst our assessment identified a number of issues, we have not encountered any risks or potential adverse impacts that, taking into account the mitigations set out by the SRA, we consider to be so significant as to outweigh the likely positive impacts of the proposals on the regulatory objectives.
“As a result, we have concluded that the refusal criteria are not sufficiently engaged to merit refusing this application.”
The LSB said it received assurances from the SRA on some areas of initial concern, and in response to enquiries on the application, the SRA refined how its proposals would be implemented.
For example, the SRA has built in additional safeguards around QWE to help to prevent poor treatment of candidates and extend its approach to monitoring how things are working in reality.
There was a fear that the fact unpaid internships could count towards QWE risked students being exploited.
The SRA acknowledged the risk but said this was not a reason to stop internships from counting towards QWE, to ban unpaid internships, or to require QWE to be obtained only through paid employment.
“The SRA considered that stopping unpaid internships would create a barrier to entry for those who have struggled under the current system to gain admission as a solicitor because of the training contract bottleneck,” the LSB recounted.
“It also noted that this would prevent QWE from including experience gained in law centre and other pro bono settings.
“The SRA considered that its codes of conduct for firms and individual solicitors would provide meaningful safeguards in relation to the risk of exploitation.”
The LSB concluded that the SRA had set out “proportionate and targeted measures” to minimise the risk of exploitation.
“While we acknowledge the risks of exploitation identified, we also consider that the introduction of QWE could help to address some of the risks inherent in the current system.
“For example, it should be less likely that aspiring solicitors are kept in paralegal roles without being offered the opportunity to train and qualify.”
Another issue was the likelihood of unregulated new training providers entering the market.
The LSB accepted the SRA’s argument that “even in the early years providers should be incentivised to provide high quality training due to future publication of pass marks”, and acknowledged that the SRA has committed to monitoring the market closely.
The SRA will also publish materials for candidates to help guide their decision on which training provider to enrol with.
At the same time, the LSB acknowledged there was “an inherent risk” with a new market that some providers may encounter viability issues.
“We expect the SRA to work with incoming providers and other key stakeholders such as the Law Society, prior to implementation, to establish the viability of introducing additional reasonable safeguards to protect students, which are beyond the scope of the regulatory arrangements proposed here.
“This should include consideration of student protection plans or market exit strategies, payment by instalments or mandatory disclosure of providers’ arrangements before accepting payment.”
The LSB noted that the SRA’s modelling showed that cheaper routes to qualification would be “amply available”.
It went on: “Whilst employer (and indeed candidate) preferences and practices might serve to maintain some more expensive pathways, the availability of cheaper pathways are designed to have a positive impact on diversity and inclusion, and thus the regulatory objective to encourage a strong and diverse legal profession.”
The LSB highlighted a range of issues that the SRA needed to manage carefully to realise the full benefits of the changes. As a result, the SRA has undertaken to:
- Monitor and evaluate the impact of the SQE and conduct an initial review within two years of implementation;
- Commission independent research in 2021 to investigate the underlying reasons that candidates from some protected minority groups did not perform as well as other groups in the SQE pilots;
- Publish comprehensive guidance on QWE for candidates and firms.
- Continue to demonstrate openness and transparency as it implements the SQE, including pass rates at the different SQE providers; and
- Provide the LSB with regular updates on progress implementation of the SQE.
LSB chair Dr Helen Phillips said: “The SQE should ensure consistency of standards and improve diversity access to the sector. This should help increase consumers’ trust and confidence, create a profession that better reflects society, and widen access to justice.
“The SQE is untested, however, and not without risk. In reaching our conclusion, we have taken account of the assurances and commitments provided by the SRA, including to monitor and evaluate implementation and conduct research to understand the impact of the SQE on diversity and inclusion.”
The SRA said it would publish more resources in the coming weeks and hold a day-long SQE virtual conference, targeted at training providers, on 15 December. It has also launched ‘Career in Law’ on Instagram to help aspiring solicitors understand what the SQE means for them.
SRA chair Anna Bradley said: “Our application and the decision notice itself show just how much work over very many years has gone into making sure the SQE is a world class, rigorous assessment.”
There will be a transitional period for people who have begun the process of qualifying under the current regime to finish under that route or choose to take the SQE.