Some thoughts on the proposed SQE and its implications for the English law degree

I highly recommend Richard Moorhead’s blog on the recently published consultation by the Solicitors’ Regulation Authority on the  standardised competence assessment for all those seeking qualification as a solicitor in England and Wales. In this post I just want to add a few thoughts of my own to the conversation. I’m also conscious that the SRA’s work is of interest to a wider audience than the UK. Here in Australia, for example, the Law Admissions Consultative Committee is continuing to follow post-LETR developments in England closely. The Hong Kong Law Society has also proposed the introduction of a Common Entrance Exam, though the scope of the HK proposal is less radical, and debate has, for now, been paused and rolled into a wider review of legal education and training that is now underway.* In this post I intend to reflect only the possible implications of the SRA proposal for the English qualifying law degree (QLD) – not least because I want avoid anything that might appear to pre-judge the Hong Kong debate.

The SRA consultation paper starts from three possible, broad, models for a potential qualification regime (para 11):

  • Option 1: Continuing to prescribe a limited number of pathways to qualification, the details of which we specify, which are aligned to the Statement of Solicitor Competence Statement, Statement of Legal Knowledge, and Threshold Standard

  • Option 2: Rather than prescribing a limited number of pathways, authorising any training pathway developed by a training provider which enables a candidate to demonstrate they can perform the activities set out in the Statement of Solicitor Competence to the standard required in the Threshold Standard.

  • Option 3: Developing a centralised assessment of competence that all candidates are required to undertake prior to qualification, again aligned to the Statement of Solicitor Competence, Statement of Legal Knowledge and Threshold Standard.

Option 1 represents largely a continuation of the status quo; option 2, I suggest, comes closer to the base position advanced in the 2013 LETR Report, while Option 3 is the SRA’s preferred approach for reasons essentially of cost, consistency and flexibility/diversity. The paper offers some compelling arguments for its preferences, and some balanced evaluation of the options, though I felt overall that it was perhaps a little more robust in critiquing options 1 and 2 than it’s preferred option 3 – though it does also, rightly, point out that none of the options are mutually exclusive (and indeed the LETR Report could be seen as recognising the value of elements of both options 2 and 3 – the latter notably in the use of standardised clients in skills assessments).

Much of the detail (and hence the devil) of the preferred approach remains to be developed. The paper is clear that the SRA anticipates a separate two-part assessment of knowledge and skills. The modularised assessment of knowledge must be completed first, and would be assessessed via computer-based objective testing. The second part would involve standardised practical exercises akin to the standardised clinical  assessments used by medical schools and in the current Qualified Lawyer Transfer Scheme. The paper is relatively open on the question whether, and if so how much, work experience should be required before the Part 2 assessments are completed.

The proposed scope of the knowledge assessments is broad. It will encompass ethics and professional conduct, wills and probate, taxation, business law and practice, property law, torts, criminal law and evidence, criminal litigation, civil litigation, contract law, trusts and equitable wrongs, constitutional law, EU law, human rights, and the English legal system (para. 41). The assessments are to be modularised, to facilitate “integration with other education and training programmes.” There is, however, no discussion at this stage of the broader assessment framework, prerequistes and sequencing of modules, or of the frequency of assessments.

Implications for the QLD

The paper is very clear that possession of a law degree should not be a basis for any exemptions from the knowledge (or skills) requirements of the SQE. In short, if this proposal goes through, the QLD as we currently think of it is dead – at least for the solicitors’ profession.

I agree with Moorhead that, if these proposals go through, we are likely to see the creation of a more divergent education and training playing field: possibly with growing differences between traditional liberal and what Moorhead calls ‘almost practice ready’ law degrees, plus a greater variety of postgraduate and, I would add, possibly non-graduate (in structure, though potentially graduate in level) options such as apprenticeships.

The consequences of all this for the law school sector as a whole are potentially substantial, and may be very serious. They include:

Recruitment: Law has undoubtedly grown as an academic subject on the back of its professional status and recognition. Even though less than 50% (and I suspect in some post-92 law schools the proportion could be 30% or even lower) actually make it to being a solicitor, between 60%-70% appear to enter law school with solicitor/barrister ambitions. Recruitment implications of the loss of QLD status are thus both potentially significant and very hard to judge. Will regulation reshape the market for training, or will the market for training adapt as minimally as possible to the regulation? There are significant vested interests involved, including the elite law schools, and the big LPC providers who will not let a multi-million pound business simply disappear overnight. Much may depend on how the elite law firms and their ‘preferred suppliers’, the elite law schools respond to these changes, and whether they (continue to) function as a congeries of reputational interests. (The reputational risks of marginalising the law degree are not addressed in the SRA paper. In the LETR research phase, by contrast,  quite a lot was made of the reputational importance of the graduate standing of the profession in the international marketplace. Whether ‘graduateness’ without the Oxbridge or Russell group badge carries the same cachet is moot). If some form of LLB + LPC remains a significant pathway, the recruitment effects may be mitigated – at least for some parts of the sector. If it doesn’t, the future becomes infinitely more difficult to predict.

Expansion of the knowledge-base – The new knowledge base essentially represents an amalgam of the knowledge requirements of the QLD and LPC. It thus reflects the continuing influence of the reserved areas of practice and thereby excludes much of what many (especially commercial) solicitors do. For those who want to develop nearly-practice ready degrees, it might not change the game that much from the current exempting degree model. However, that assessment also depends in large part on how much current flexibility over (QLD) content is reduced by the so-far unwritten assessment framework. To expect the  academic community to vote on the options in the absence of this seems rather like asking turkeys to vote for something that may or may not be Christmas; you really would like to know first.

Doubling-up of assessment burden: those who continue to do degrees are likely to be confronted with a growing assessment burden. Under the preferred model university assessments will not count for the SQE, and it would be a radical change of policy for universities to accept entirely external assessments as part of a (concurrent) degree. Moreover, the fact that the SRA currently sees SQE assessments as both pass/fail and sitting outside the Framework for Higher Education Qualifications (FHEQ) (see paras 57-58) makes any inclusion by recognition a less, not more likely, prospect. The impact, including diversity impact, of the scale, scope, timing, frequency and cost of SQE assessments on law students specifically appears not to have been addressed at this stage.

Implications for innovation and diversity of intellectual approaches: a drift towards nearly practice ready degrees may have significant ‘unintended’ (or from the SRA’s point of view, ‘none of our concern’) consequences for academic law. Joint degrees may decline because they simply cannot address enough of the SQE ‘core’ knowledge. Unless a clear secondary market develops in SQE test preparation (a matter which in itself may have some diversity implications), universities are also likely to find themselves under some pressure to teach to the test. That is likely to (further) undermine socio-legal, theoretical or other alternative intellectual approaches to doctrinal legal analysis. (Recall that the LETR Report data highlighted the limited value professionals attached to jurisprudential or socio-legal content/ approaches.)

The anxiety has begun…

*The Hong Kong Review under the auspices of the Standing Committee on Legal Education and Training is being undertaken by a panel comprising Justice KH Woo, Professor ATH (Tony) Smith and myself.

 

The ‘voluntary regulation’ of unregulated paralegals moves closer in England and Wales

Although the LETR was able to undertake only a very limited investigation of unregulated legal services, the Report was able to demonstrate that unregulated providers appeared to be delivering a significant proportion of personal legal services and even some work for corporate clients in specialist areas like employment law, all with very little regulation or external assurance of the quality of services. It was also clear that more research into the unregulated sector was required. Consequently we recommended that:

Recommendation 23
‘Consideration should be given by the Legal Services Board and representative bodies to the role of voluntary quality schemes in assuring the standards of independent paralegal providers outside the existing scheme of regulation. The Legal Services Board may wish to consider this issue as part of its work on the reservation and regulation of general legal advice.’

However, it was also apparent that the existing regulators had very little appetite for this. It was of course largely outside the remit of the frontline regulators, and possibly a step too far for an LSB being challenged over alleged mission creep, and dealing with a government that was already considered suspicious of extending legal services regulation any further. Consequently, I was pleased to discover last year that there was a real interest amongst membership bodies in the unregulated sector in taking this agenda forward. Over the past 18 months, the National Association of Licensed Paralegals (NALP), and the Institute of Paralegals (IoP) have been working in consultation with other stakeholders to develop a single voluntary register for the paralegal sector. This has now officially gone live at ppr.org.uk

The Register is intended to operate as a not-for-profit service. Members of participating membership bodies will be passported onto the Professional Paralegal Register (PPR). At present there are three eligible bodies –

  • NALP
  • IoP
  • Institute of Professional Willwriters (IPW)

The rationale is, of course that registration will provide mutual benefits for individual paralegals and consumers. Consumers get some degree of protection and quality assurance. Paralegals will be registered on one of four tiers or levels of membership, based on qualifications and experience. They must also carry PII cover, abide by a code of conduct, and agree to submit to the disciplinary jurisdiction of the PPR which will have powers to sanction members including awards of compensation, return of fees, suspension and removal from the Register. Paralegals, in turn, get the reputational benefit of registered status and the ability to ‘advertise’ their work, including specialisation and contact details to both prospective employers and  consumers through the PPR website .

It will be interesting to see if this approach succeeds. It does assume that registration will provide sufficient visibility and incentives for both consumers and paralegal practitioners to make use of it. This may not be straightforwardly the case; we have fairly limited understanding of how consumers currently access unregulated providers.The numbers of paralegals so far registered is quite small, and the first test will be to see how widespread take-up is. From a research point of view it will also be interesting to get a sense of who is registering and the range of work in which they claim specialisation.

Declaration of interest: the author (Julian Webb) is a Patron of the PPR

Implementing the LETR

I was sorry to miss the latest Westminster Legal Policy Forum (WLPF) event in London on 5 November, but unfortunately I was otherwise occupied in the southern hemisphere. The event was timely, given that the SRA has recently published its consultation on its draft competences and the BSB have also just given us some further detail of their training strategy (though still not a lot – HT here to Steven Vaughan’s recent guest blog on Richard Moorhead’s Lawyer Watch).

The WLPF summarised the event as follows:

Sessions brought together key stakeholders working across the current legal education and training framework – including colleges, universities, careers advisory services, vocational training providers and regulators – alongside law firms, chambers and wider legal employers. Delegates had particular opportunity to consider the prospects for developing new qualification pathways and access routes to legal professions, as well as possible changes to competency frameworks and Continuing Professional Development. Sessions also focused on current proposals to streamline regulatory involvement in education and training processes, and the challenges ahead for a revised framework in supporting both innovation and standards.

The work of the LETR research team is, of course, long-finished, but it was good to see that my colleague on the team Professor Avrom Sherr was invited to open the event and did so, in his own words, by going provocatively “off message”, not least on the challenge to the representative bodies to maintain their relevance after the Legal Services Act; on the tendency of the LETR to be about “regulation, regulation, regulation” rather than “education, education, education”, and on the potential boringness of the SRA’s competence statement. This all bodes rather well for our joint Upjohn Lecture in January 2015!

I have storified all the tweets I could track from the WLPF event here (in reverse chronology):

Reforming solicitors’ CPD

At its meeting on 21 May the Solicitors Regulation Authority (SRA) Board approved the move by the SRA to implement a new system of ‘continuing competence’ to replace the current, and largely discredited, input-led CPD scheme for solicitors in England and Wales. The decision remains subject to approval by the Legal Services Board, but if approved (as seems likely) the new ‘scheme’ will be phased in from Spring 2015, for early adopters, coming fully into force in November 2016.

The changes follow-on from a consultation document published in February which spelt out three optionsfor CPD:

 Option 1, the SRA’s preferred option, which would  revoke the current CPD scheme and rely instead on existing conduct of business regulation, requiring a proper standard of legal work and of training and supervision. Option one would be supported by non-mandatory guidance;

Option 2, would replace the current CPD scheme with a new cyclical/outputs based framework, imposing a requirement to reflect on practice and implement a development plan without a mandatory hours requirement; and

Option 3, would retain the current requirement to do a minimum number of CPD hours, and would require the training to relate to current or anticipated legal practice and recognise a wider range of development activity.

The consultation on these options received 64 responses in total – unsurprising, perhaps, but still depressingly low given the scale and significance of the changes being proposed. Understandably the SRA did not therefore attach a great deal of weight to the numbers in its response to the consultation, instead addressing the responses more qualitatively. Nonetheless it is interesting, if somewhat unsurprising (again) that the majority, 33, including the Law Society,  opted for Option 3 (13 expressed no preference for any of the options). This was, of course, the most familiar and conservative alternative given, and the one least consistent with best practice highlighted by the LETR Report! The SRA has nonetheless opted for its original preference, Option 1, on the basis that it focuses on the effectiveness of training, gives individuals—and firms—more flexibility and choice in selecting appropriate training, and reduces the burden of regulation. The changes will also mean that training providers will no longer require authorisation from the SRA.

 So has the SRA got it right? If it was to drag CPD into the 21st century, it had to choose Option 1 or 2, and to that extent should be applauded. Option 3 in that sense always struck me as a hostage to fortune for the SRA, unless it was going to ignore both what came out of the LETR Report (see paras 2.147-2.166, 6.72-6.95) and the LSB’s statutory guidance.

But equally there are significant risks with Option 1, given the extent to which it deregulates CPD. In this regard it comes close to the system developed in Alberta, Canada, and it is notable that, for all its strengths, that scheme has run into some challenges in making  individuals properly accountable for completing their CPD. Option 1, more than Option 2, begs the question always begged by heavy reliance on what is essentially principles-based regulation, namely: how do you enforce a culture change where there are no clear rules? The SRA in its response has recognised that there will need to be a significant culture change, and has therefore proposed a substantial transition period from Feb 2015 to Nov. 2016 to facilitate that. But this still means that the SRA is relying predominantly on the guidance it will produce, and that of course will be, by definition, non-mandatory, so the question still remains. Moreover, if the SRA is to rely ultimately on the broad obligations to deliver an acceptable quality of work/training, as the Legal Services Consumer Panel’s response noted, it will be interesting to see how it plans to go about identifying a lack of quality such as to trigger monitoring or enforcement action. The link between quality and CPD is not straightforward; if the SRA gets this wrong it may well increase rather than reduce the likelihood that some system of professional re-accreditation will be required sooner rather than later.

More generally, given the statutory responsibilities on the SRA, I also think it is unfortunate that there has been so little analysis of how the proposed changes achieve the Legal Services Act regulatory objectives. For example, how differently does each option support the public and consumer interests? The risk that regulatory intervention relating to CPD may not go far enough in protecting the public interest has already been highlighted, but it could as easily go further than required. How does it contribute to the development of a strong, independent, effective and diverse profession?  In the latter context in particular, the LETR Report highlighted needs for continuing ethics, management skills and diversity training (Rec. 9) – do these become non-mandatory under Option 1. If so is that consistent with the objective? How much Option 1 relative to Option 2 reduces the regulatory burden for firms, rather than for the SRA, may also be moot.

Ultimately, though, the key question is, will it make a significant difference to the kind of learning that takes place, and to the extent to which practitioners are enabled to catch their breath and actually reflect on what they are doing? For the answer to that we must wait with baited breath (or maybe not…); the evidence certainly suggests the potential is there, though option 1 again raises the stakes by placing a premium on firm culture in a way that few systems have attempted to date.

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Plus ca change

In the week that the “iconoclastic” (according to Legal Business ) Professor Nigel Savage announces his pending retirement as President of the University of Law, it is interesting to reflect on the words of another senior vocational provider, commenting on the need to develop a more effective system of blended learning between the classroom and the office for the training of would-be solicitors:

…. a reform in this direction will eventually be forced upon the profession by the growing complexity of the law and the absurdity of spending many thousands a year on an official system of legal education which is debarred by out-of-date restrictions from giving of its best.

Sounds familiar? But the rub is the quote’s not from one of Nigel’s competitors at Kaplan or BPP, or any other current LPC provider, it was said by Dr G.R.Y. (Geoffrey) Radcliffe, Principal of the Law Society’s School of Law and Fellow of New College, Oxford in July 1939 during his Presidential address to the Society of Public Teachers of Law. Moreover, it referred to an even earlier proposal of the Cardiff Law Society that the (then) five year period of articles should be organised on what we might today call a sandwich model, layering sequential ten month blocks at law school, with 15 month blocks in the office. No disrespect to much that Nigel Savage has achieved, but given that 75 years on we are still engaged in variations of the same debate, how do we define iconoclasm in legal education? And when we’ve worked that out, could someone please tell the journos at Legal Business?

ABA Legal Education Task Force publishes draft report

The American Bar Association’s draft report and recommendations on the Future of Legal Education was published on Friday 20 September. The full text of the report can be accessed here.

In a number of obvious ways this is no LETR report. It is not explicitly research-based (though the ABA has held hearings and invited evidence), it takes up less than 40 pages, and has taken only a year to produce. Nonetheless there are some interesting simlarities.

The report opens with a familiar story. It recognises that the US system of legal education “faces considerable pressure” over costs, student debt, declining application levels and “possibly structural” changes in the number and kinds of jobs available for law graduates. It also prefaces its recommendations with a recognition that the core problems are structural, and not amenable to quick fixes. Rather like the LETR report it too acknowledges the challenge, given the contested terrain of legal education, of presenting recommendations that would have “a reasonable chance of influencing action”, and capable of creating a framework for “continuous adaptation and improvement”.

The main problems identified by the report can be summarised very simply: US law schools are too expensive, too alike and too remote from the needs of practice. The medicine prescribed by the Task Force includes:

  • systematic reform of law school pricing and financing
  • a greater focus on defining and delivering professional competencies, both at law school and subsequently
  • the development and delivery of new systems of training and licensing those with limited practice rights, rather than focusing so much on the production of “professional generalists”
  • Greater support and incentives for innovation and experimentation in the delivery of legal education, eg, by reducing regulatory barriers to experimentation
  • the need for all stakeholders to support “an enterprise or program for the continual assessment of conditions affecting legal education and of the strengths and weaknesses of the then-current structures in legal education, and for fostering continual improvement in the system of legal education”.

The greatest disappointment to many is likely to be that the Task Force has, perhaps not surprisingly, sidestepped the issues of cost and funding, arguing that the time allotted was insufficient to the task. It has thus recommended that a further task force or commission be appointed, with the expertise to pick up this task.

Beyond this, a number of similarities to the LETR approach are quite striking. The Task Force has also focused on general principles, rather than risk getting lost in regulatory detail, and has largely come out against greater prescription. It calls for some re-regulation and de-regulation where necessary or possible, but most of its proposals are non-mandatory and rely on the use of incentives, facilitation and coordination techniques. Beyond that there are three particular common themes I think it is useful to highlight:

  • First, there is the drive to define competencies. The Task Force has possibly gone (even) further than the LETR in saying to law schools, you can build your own curriculum inside the competencies required. But this is accompanied by a very clear indication that law schools need to do much more to re-align the balance in the JD between academic law and what the Task Force calls “focused preparation for the delivery of legal services”. In both England and Wales and the US the devil here will lie in the detail of the competences chosen.
  • Secondly, the Task Force report notes the wide range of initiatives being undertaken in response to the current challenges facing law schools, but also highlights the fragmented and uncoordinated nature of responses, and the absence of “a full understanding of the tools available to effect change, mechanisms for assessment of progress, and a strategy for long-term continuous improvement”. This is also all too familiar (though it may be arguable that the sense of crisis in the US has driven innovation to an extent that we have not (yet) experienced in the UK). What I think is critical here is to recognise that the Task Force and the LETR Report have both highlighted the importance of creating a formal coordination and evaluation mechanism – LETRs Legal Education Council and (virtual) Legal Ed Lab, and the Task Force’s  call to establish a “Center or other framework” to support, assess and evaluate improvements in the legal education system. My personal concern is that this proposal is in danger of being overlooked in the deliberations that have so far followed publication of the LETR Report. If such an outcome is achieved in the US, and not in England and Wales, then a very considerable opportunity will have been lost to UK legal education.
  • Thirdly the Task Force report also acknowledges the need to enhance access to justice for lower income consumers. It therefore proposes that non-lawyers be permitted to perform “limited legal services,” and that bar admission might also be opened up to individuals who have not completed an undergraduate degree and law school. This again has significant echoes of the liberalisation measures proposed by LETR, though it is not clear whether the US report countenances a return to a full apprenticeship model such as is being developed in England and Wales.

Responses to the Task Force’s draft are invited. The report should be finalised in November and presented to the ABA’s policy-setting body, the House of Delegates, early in 2014.

New surveys from Targetjobs

GTI Media, the publishers of the Targetjobs websites, have completed their 2012 trainee and law student surveys. The results can be found here.

Results for the trainee survey are derived from an online survey completed by 206 trainee solicitors working at a ‘variety’ of law firms. Headline findings include:

  • Just over 70% agreed that the LLB/GDL prepared them ‘quite’ or ‘very’ well for work
  • Over 90% thought that the LPC prepared them ‘quite’ or ‘very’ well for legal practice
  • About 75% agreed that ‘university’ prepared them ‘reasonably’ or ‘very’ well for their training contract

These headlines obviously suggest a fair degree of satisfaction with the status quo. Neil Rose in Legal Futures has been quick to suggest that “the results arguably run contrary to the sentiments coming out of the ongoing Legal Education and Training Review (LETR) that the LPC is not preparing students adequately.” Of course its Neil’s job to look for an argument, but I have two responses to that statement; first, so far, we have only asked the question, we are still looking at (for) the evidence, either way. Secondly, I’m not sure the evidence to LETR thus far is pointing to radically different conclusions regarding student perceptions (though those of course are just part of the picture, and we are trying to be more nuanced about it, precisely because these sorts of headline stats are of relatively limited value).

As with all stats, the story they tell depends, to an extent, on how we choose to interpret them: glass half full or glass half empty? Should we be concerned that over a quarter of graduates felt that their LLB/GDL did not prepare them ‘at all well’ for the world of work?  Similarly, that 68% said the LPC prepared them only ‘quite well’ for the TC might be seen as less than a ringing endorsement. Is ‘quite well’ good enough, or is it realistically as much as we can ask of a classroom-based course?

More than that, however, responses need also to be read in the context of what else was asked, and what else we know about the sample. From the published GTI date the contextual date appears quite limited:

  • All respondents are employed as trainees, so the system has worked for them. We don’t know if that predisposes them to the status quo. Would unsuccessful LPC graduands have given a significantly different set of responses?
  • We don’t know whether factors like sponsorship, the provider attended, or attendance at a ‘bespoke’ LPC make a difference to perceived satisfaction. Some more sophisticated factor analysis might be really helpful here.
  • What if we asked them to envisage a better way of training, how would the LPC compare then?
  • What if we also asked them whether the LLB or GDL should be a better preparation for work or not? That might have given a different slant on satisfaction with the degree/GDL

This is not intended to rubbish the GTI findings, but it does highlight (as if we need to!) the difficulty we face in interpreting such broad data.  This is one of the reasons we are drawing extensively on qualitative data for LETR, and, interestingly, the individual comments reported by GTI do echo quite a number of the things we are hearing in our fieldwork.

The student survey (705 respondents) also offers some strong measures of student satisfaction: 85% of those studying law were ‘happy’ or ‘very happy’ with the quality of their degree, and only 4% felt that their degree did not prepare them for work.

Not surprisingly, the GTI data echoed other recent studies that have emphasised the criticality of work experience to access to the profession.  93% of students stated that they found it ‘difficult’ or ‘very difficult’ to get a vacation placement offer. Students also felt strongly that the profession has an obligation to provide more work experience opprtunities than it currently does.

The survey also reports that 43% of students were thinking about a career outside of law. The report speculates that this may reflect the higher competition for training contracts and pupillages. But again the evidence may not really support this. It is not clear whether the GTI data disaggregate those students considering a non-legal career as a back-up option from those who have no intention of entering the profession. Melissa Hardee’s recent survey, along with other studies going back to the 1980s, suggests that, by the final year of the degree, consistently over a third of law students have no intention to enter practice, indicating perhaps that increased competition may be having less of an impact than the 43% figure at first sight suggests. But food for thought nonetheless.