The decision on whether to approve the Solicitors Qualifying Examination (SQE) has been delayed amid a call from groups representing more than 4,000 legal academics to reject it.
The Legal Services Board (LSB) had an initial 28 days to approve the Solicitors Regulation Authority’s (SRA) application but has extended the decision period to 90 days as permitted by the Legal Services Act 2007.
The board often does this when faced with major decisions. The extension notice said: “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 28 October to make its decision – the test is whether there is a reason not to grant it.
Legal academics have been generally hostile to the SQE throughout its development, and the LSB has received a joint letter urging it not to approve the application from 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. They have a combined membership of over 4,000.
The letter argued that the overhaul was not justified by “any significant evidence that the previous arrangements were endangering the interests of consumers or the public interest”, and was unlikely in practice to be significantly cheaper in real terms than the current regime.
The groups said that the SQE in itself, in the absence of requiring a qualifying law degree or graduate diploma in law (GDL), was “inadequate to provide sufficient protection for consumers and assurance to employers.
They criticised what they said was an underlying assumption that “the application of the law is a purely mechanical exercise of applying rules that are always clear”.
The letter explained: “A major deficiency in the proposed arrangements is that they are wholly inadequate to ensure that candidates demonstrate the understanding and skills needed to advise clients in those many and complex situations where the law is uncertain.
“This may be because of gaps or inconsistencies in case law or because statutes require interpretation. These are matters that require the deployment of considerable legal skills in analysing case law and interpreting legislation that go way beyond anything that can be tested in a multiple choice question [which is the format of the SQE].”
The academics said the published model SQE1 questions were entirely focused on issues where the law is clear – and, in the case of questions on the foundation subjects, “very basic”.
“The skills element originally proposed by the SRA for SQE1 has been dropped. 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.”
The letter said it seemed “clear” that a student who passed the SQE without having studied law at under- or postgraduate level “will be unlikely to find employment as a solicitor unless they can rely on personal contacts” – although no evidence was cited for this assertion.
It continued: “It is likely that most solicitors’ firms will require such study even if the SRA does not [according to a 2017 survey by BPP]. Accordingly, there is a hidden de facto hurdle in the way of entrants to the solicitors’ branch.”
The groups were also unhappy with the SRA’s recent decision that, following a pilot of SQE2, it will be a uniform exam, rather than allowing students electives.
“The existence of choice would have enabled candidates to focus in SQE2 on areas that reflected their qualifying work experience. This throws into sharp relief the point that, as is widely recognised, the list of the current regulated activities, and the fact that the status of solicitor entitles any or all to be undertaken, is anachronistic.
“There is an urgent need for these to be reformed, so as properly to reflect the realities of modern legal practice. Those realities are likely to be subject to further radical change as the result of the current pandemic.
“Quite apart from this, a complete lack of choice risks devaluing candidate experience and career plans, potentially prejudicing competent candidates and discouraging an appropriately professional focus on directly relevant matters.”
The groups described the SRA’s position on work experience as “incoherent” – though a requirement, “as the SRA is unwilling or unable to regulate it, it operates on a ‘time served’ basis that would have been recognised in the 19th century”.
The letter said “the sensible way forward” was instead first to retain the requirement for a qualifying law degree or GDL, and second secure the reform of the list of regulated activities “in the light of contemporary needs and restrict practice on an activity by activity basis to those who have demonstrated competence in that activity”.
Finally, the SRA could then “refocus a properly constructed centralised examination on the professional knowledge and activities beyond the foundation subjects… or engage with providers in developing a revised, probably slimmer, equivalent to the legal practice course, which can be developed in different forms to reflect modern forms of legal practice”.
In its letter to the LSB, the Law Society said it supported the SQE’s objectives of “ensuring consistent high standards and making the profession accessible to diverse candidates”.
But it urged the oversight regulator to “set expectations” for the SRA to ensure that the SQE does not negatively impact equality, diversity and inclusion in the profession.
This included the risk to social mobility because of the lack of funding available for the costs of the SQE assessments and for disabled students with the Disabled Students Allowance, although both the Law Society and SRA are lobbying government on this.