Cutting through the Gordian Knot of SQE

The Solicitor’s Regulation Authority (SRA) has recently submitted its final application to the Legal Services Board (LSB) requesting approval to replace the current routes to becoming a solicitor with the Solicitors Qualification Exam (SQE).

If there’s anyone that doesn’t know what the introduction of the SQE will mean for how people become solicitors, the following may help: whereas the current formula for qualification is essentially ‘LLB (a law degree) or the Graduate Diploma in Law (GDL) + Legal Practice Course (LPC) + training contract = solicitor’ (with equivalent means/CILEx/apprenticeships as alternatives), the SRA proposes to change this by introducing a two-part assessment. Successfully completing this assessment plus two years’ worth of ‘qualifying work experience’ (not to be confused with a training contract) would lead to qualification.

Ever so slightly before the SRA embarked upon this upheaval (or at least it feels that way, writing as someone who has raised concerns about the SQE for years), Alexander the Great was confronted by the hideously complicated ‘Gordian Knot’ – which, according to contemporaneous legend, was so complex that it could only be untied by the person who would go on to conquer Asia.

The preternaturally fiendish Gordian Knot comes to mind as your author has just finished reading the above SRA application, which repeatedly ties itself (and the reader) into an ever tightening logically inconsistent tangle.

It’s difficult to know where to start.

On the one hand the SRA is driven by the need for consistency in assessments, but on the other it explicitly wants to make the ‘qualifying work experience’ element of becoming a solicitor significantly looser.

On the one hand the SRA wants the LSB to approve its policy for making reasonable adjustments, while on the other acknowledging that its pilots of the SQE examinations didn’t have enough candidates with disabilities to draw any meaningful conclusions about how the new format will affect them.

On the one hand the SRA says that the SQE should result in high standards, but on the other hand it acknowledges designing the assessments as a proportionate measure which will ensure that all solicitors have achieved the minimum standard of competence required to practise safely.

On the one hand, the SRA says that the SQE will introduce a level playing field for candidates, while on the other it admits that student loans will not be available (meaning that students from poorer backgrounds will clearly be disadvantaged). See what I mean?

Amidst the juxtaposition soup is one claim which particularly sticks in the craw – that the primary purpose of the SQE is the protection of consumers of legal services.

Notwithstanding the SRA’s own description of the SQE as a device to ensure the minimum standard has been met, the details of the new format belie this claim. In contrast to the current system where legal knowledge is predominantly assessed through essay-style questions (which demonstrate the ability to explore a problem at length, weighing issues and communicating a solution), it will be assessed by the SQE via 360 multiple choice questions (MCQs) covering 12 distinct legal areas (eg contract, tort) taken over a total of 11 hours’ worth of exams.

Apart from the problem that MCQs cannot test a candidate’s ability to analyse a problem (as opposed to regurgitating a fact), it is clear that the assessment time for the SQE will be dramatically lower than the present system. I recall doing a three hour written examination for contract law – the SQE will consist of around 30 MCQs taking circa 55 minutes for such a topic. What’s worse is that if I had failed my contract law exam, I (rightly) could not have qualified (potentially giving incorrect advice on contract law to a client). As the SQE only considers an overall mark, the SRA acknowledges that a candidate could perform direly (a ‘fail’ in old money) in one area but have this compensated for by other parts of the exam.

Requirements for ‘qualifying work experience’ are further cause for concern in terms of consumer protection. Despite various overtures to rethink its approach, the SRA has stuck with a sign-off process whereby the person signing off experience just has to confirm that the candidate had the opportunity to demonstrate the necessary competencies during the time in question. Not that they did demonstrate the competences – just that they had the opportunity to do so.

Furthermore, the SRA claims that the SQE will test whether a candidate has the necessary competencies, but confusingly does not mandate that qualifying work experience (required to develop competence) must come before the second exam (which tests those competencies) – or that the second exam should be the last stage in the process (as it logically should be)…

There are also no safeguards on the identity of the person doing the sign-off – they could themselves have qualified that very day, and be directly related to the candidate. When it comes to the implications for consumer protection this sadly isn’t nuance, it’s nonsense.

The LSB will, like Alexander, be faced with myriad loose ends to tease when it considers the SRA’s application. The LSB can learn from Alexander: rather than fruitlessly tinker around the edges, he simply cut the Gordian Knot in half. The LSB should follow suit and reject the SRA’s application to introduce the SQE in its current format.

This article was first published on 4 August 2020 by The Lawyer and is reproduced by kind permission.