Legal Services Board decision on the Solicitors Qualifying Examination
Overview
The Legal Services Board (LSB) made its decision on the Solicitors Regulation Authority’s (SRA) application for the Solicitor’s Qualifying Examination (SQE) on 28 October 2020.
See the LSB decision notice (PDF).
The application concerns the “switching on” of the SQE, so that it can begin in September 2021.
The SRA’s two primary objectives framed the LSB’s approach to the application:
- greater assurance of consistent, high standards at the point of entry (“standards”)
- developing new and diverse pathways to qualification, which are responsive to the changing legal services market and promote a diverse profession by removing artificial and unjustifiable barriers
The regulatory objectives that could benefit are:
- (a) protecting and promoting the public interest
- (d) protecting and promoting the interests of consumers
- (f) encouraging an independent, strong, diverse and effective legal profession
The decision summarises issues that the LSB considered to carry a degree of risk to the regulatory objectives which, if unmitigated, had the potential to engage the refusal criteria. These are:
- qualifying work experience (QWE) – quality of QWE, professionalism and ethics and risk of exploitation
- training provider risks
- costs/affordability
- differential attainment
- provision of SQE in Welsh
- removal of requirement for academic study of law
- concerns about the design and quality of SQE assessments
- removal of skills test from SQE1
- accessibility of the SQE and reasonable adjustments
- ordering of the elements of the SQE
- barriers to cross-qualification
- COVID-19 impact on development and implementation
- evaluation and monitoring
The LSB's decision draws attention to a range of issues that the SRA will need to manage carefully to realise the full benefits of the changes.
The LSB expects the SRA to continue to demonstrate openness and transparency as it proceeds to implement the SQE, but recognises that the LSB’s regulatory performance framework will provide additional assurance that the SRA follows through on its commitments.
1. QWE – quality of QWE, professionalism and ethics and risk of exploitation
The LSB noted that the SRA will be producing guidance that will set clear expectations for what the SRA would consider an acceptable quality of QWE and how this would be supported through its rules and requirements.
The SRA will also publish data on SQE pass rates by QWE provider. It expects that this will encourage those organisations to provide a good quality experience and help candidates to decide where to undertake QWE.
The SRA also expects that QWE will be signed off, with reasons needing to be given if sign off is refused.
The SRA has committed to establish a dedicated hotline for QWE candidates to report issues with QWE. This is expected to give early warning of systemic issues, or serious or repeated concerns about a particular provider which need to be followed up. It could act on intelligence received through the hotline without a candidate needing to make a formal referral to the SRA. This will be backed up, of course, by the Code of Conduct for Solicitors.
The SRA has set up a “community of interest” for QWE providers, with opportunities to meet and share best practice and concerns about QWE.
The SRA set out measures to monitor whether its expectations for QWE are being met and whether candidates are being treated fairly, which include:
- an annual survey of candidates to get feedback on their experiences of QWE, which will give insight into specific QWE environments, and show where the SRA needs to take appropriate action where there may be difficulties
- reviewing and monitoring information such as referrals to its dedicated QWE hotline
- a focused evaluation of how QWE is working in the second year after the SQE is introduced
- a wider evaluation programme through the SRA’s market studies (2, 4 and 5-7 years) that will look at the availability of QWE opportunities and how employers have reacted to QWE
- “perception studies” (2, 4 and 5-7 years) through which the SRA will explore candidates' and employers' perceptions of the new system, including their experiences of QWE
The LSB will review statutory guidance on education and training in its next strategic cycle (covering 2021 to 2024). It may look to be more proactive in setting requirements for ethics and professionalism but it is currently content with the SRA’s approach.
Unpaid internships were noted as an area for the SRA to monitor, with future work potentially.
2. Training provider risks
The LSB noted concerns about the potential quality and viability of providers. The SRA noted that many of the providers planning to offer SQE preparatory training are existing providers that are regulated by the Quality Assurance Agency for Higher Education and the Office for Students (OFS).
The SRA also noted the plans to publish data on SQE results, tied to providers, which would encourage providers to ensure high standards to retain their market share.
The SRA will issue guidance that makes it clear that the SRA regulates the SQE assessments but does not regulate SQE training providers, courses or materials. The guidance will advise candidates on what to look for when choosing a provider, including checking what protections providers have in place.
The SRA will use the “community of interest” it has established with training providers to keep this issue under review and to consider further “light touch” measures that may be needed in the future.
The SRA will monitor the training market as part of its evaluation (2, 4 and 5–7 years) and will review its approach if any concerns arise.
The LSB expects the SRA to work with incoming providers and other stakeholders such as the Law Society, before implementation, to establish whether it is viable to introduce additional reasonable safeguards to protect students, which are beyond the scope of the regulatory arrangements currently proposed.
This should go some way to mitigating the inherent risks in the first few years of the new system, before data publishing can take effect.
3. Costs/affordability
In response to concerns that the new routes will be no cheaper than the current ones, the SRA stated that a range of routes will be available, with different costs. Many, though not all, of these will be cheaper than the current system. The SRA’s engagement with providers and firms suggests a range of models will be available.
The LSB is satisfied with the SRA’s modelling and that cheaper routes will be amply available, but notes that balanced against this is the lack of government funding and the impact on equality, diversity and inclusion among those seeking to enter the profession.
The LSB notes that the SRA is not responsible for the government’s decisions on funding, but it expects the SRA to seek to build trust among stakeholders to encourage them to embrace the reforms to ensure the maximum benefits.
The LSB’s overall assessment is that cost/affordability is unlikely to give rise to a negative impact on the regulatory objectives. However, it recognises that achieving the full benefits of the new framework will depend on factors beyond the scope of these regulatory arrangements. The benefits of diverse pathways are likely to be much diminished if, for example, existing cultural barriers within the profession, such as preference for “elite” institutions, are not tackled meaningfully.
4. Differential attainment
Some stakeholders had suggested that, due to differential attainment and the small sample size of the pilots, the SRA should do further testing, research or piloting.
The SRA was clear that it did not consider that further pilots would answer any new questions. It noted that differential attainment is not an issue specific to the SQE, but is found across higher education and professional assessments.
The SRA’s application sets out measures that the assessment provider, Kaplan, will introduce to minimise the risk of unfairness to candidates from protected minority groups. This includes diversity training and various monitoring activities.
The SRA will also commission independent research in 2020/21 to investigate the underlying causes of differential attainment, as set out in its decision to proceed with the final SQE design. This research would be informed by the results of the first cohort of SQE students.
The SQE, as a national qualifying exam, would enable a large data set to be collected and analysed, covering all candidates who have sat the same exam. The SRA considers this will give a sound basis to research differential outcomes and their causes and to measure the effect of actions taken to improve equality of opportunity.
The LSB recognises that there are significant concerns with differential attainment under the current system and that the new approach could have significant benefits regarding data collection, as outlined above. It concludes that the new framework appears to provide an important opportunity for progress in understanding and responding to existing concerns about differential attainment.
5. Provision of SQE in Welsh
On the issue of the provision of the SQE in the Welsh language, which will take until the fourth year to achieve parity, the LSB concluded that whilst a shorter implementation period would be preferable, taking account of the limited existing provision of assessment in Welsh and the SRA’s arguments about the scale of work needed, the SRA’s approach is reasonable in the circumstances.
6. Removal of requirement for academic study of law
The SRA asserted that its obligation to ensure that regulation is proportionate and targeted means that it cannot justify requiring candidates to take a course of study that would teach them more, or require them to study for longer, than is necessary to gain the core competences needed to practise as a solicitor. This could result in unnecessary cost for candidates and act as a barrier to qualification.
The LSB considered this issue afresh, having previously considered it during the SRA’s first application on the SQE. It concluded that it is satisfied with the SRA’s justification for its approach.
7. Concerns about the design and quality of SQE assessments
Some stakeholders raised concerns that assessment of legal knowledge by multiple-choice questions (MCQs) at SQE1 is inadequate to test the understanding and skills needed to advise clients where the law is uncertain.
The SRA’s application set out its view that MCQs are capable of testing cognitive skills across the breadth of the curriculum, unlike essay-type questions and short answer questions. The SRA noted that in developing this approach it used leading psychometricians in the design of the SQE, including commissioning a technical evaluation of the proposed approach, and the SQE Reference Group, made up of key stakeholders. The technical evaluation supported the use of MCQs and stated that “the evidence for using MCQs in similar contexts and qualifications is strong”.
At SQE2 the approach was also guided by piloting, Kaplan, the Independent Reviewer and the external psychometricians. The SRA concluded that a uniform exam is the only way of establishing a consistent universal standard at admission and so ensuring fairness to candidates. Given the generic nature of the solicitors’ qualification, the SRA considered a universal exam testing the legal skills sampled across practice contexts to be the model best designed to protect consumers.
The LSB is satisfied that the SRA has given significant attention to the SQE assessment design, involving a wide range of relevant expert input.
8. Removal of skills test from SQE1
Some stakeholders raised concerns about this change, noting that SQE1 should also test certain skills to allow progression from SQE1 to SQE2.
The SRA explained that the small number of skills exercises included in the assessment, when piloted, did not enable sufficiently reliable or accurate pass/fail decisions. This meant that the SRA could not be sufficiently certain that candidates who passed had met the required standard. As a result, Kaplan recommended removing the skills assessment from SQE1 entirely, and instead relying on the skills assessment in SQE2.
The LSB is satisfied with the SRA’s justifications for excluding a skills assessment from SQE1, which was based on advice from Kaplan and the Independent Reviewer. It also noted that if the skills assessment was expanded to address concerns following the pilot, this would increase costs, with other negative consequences, particularly for equality, diversity and inclusion.
9. Accessibility of the SQE and reasonable adjustments
Some stakeholders were concerned about the accessibility of the SQE assessments and how requests for reasonable adjustments would be managed. The location and number of oral assessment centres also raised concerns about travel costs for those from lower socio-economic backgrounds.
The SRA gave examples of reasonable adjustments (such as additional time, alternative venues and scheduling adjustments), while noting that these depend on individual circumstances. It is formulating its reasonable adjustments policy with relevant stakeholders, and the LSB stressed that this should continue as the SQE is implemented.
The LSB is assured that the SRA and Kaplan have carefully considered the breadth of adjustments and that ongoing reporting and holding to account will provide transparency for how they are operating in practice.
10. Ordering of the elements of the SQE
A stakeholder requested that the SRA should set out that candidates should complete QWE before attempting the SQE2 assessments, to ensure high quality QWE and to guard against firms requiring candidates to have passed both SQE1 and SQE2 before starting QWE.
The SRA explained that it sees no regulatory justification for restricting flexibility in how employers recruit and train their future solicitors. It envisages a range of different approaches emerging in the market and considers that flexibility for all firms and employers, as well as for the candidates, offers opportunities for all concerned.
The LSB agreed that it would be disproportionate to impose further restrictions.
11. Barriers to cross-qualification
In the current system, many qualified lawyers choose to cross-qualify as a solicitor and there are certain exemptions that may apply. Some stakeholders were concerned about the SQE creating a barrier for those wishing to cross-qualify.
CILEx Fellows with practice rights would be considered as qualified lawyers under the SRA’s Principles for Qualified Lawyers and SRA Authorisation of Individuals Regulations. They would be entitled to apply for exemption from SQE1 and/or SQE2 on the basis of any prior qualifications or experience. If they're applying solely on the basis of their CILEx qualification, they are likely to have to take the whole of SQE1 and SQE2, but the SRA confirmed that CILEx Fellows with practice rights will not be required to complete QWE.
CILEx Fellows without practice rights will not be considered qualified lawyers and will therefore be required to take SQE1 and SQE2 and to complete QWE, as with any other unqualified candidate. However, it is likely that CILEx Fellows without practice rights will be able to meet the requirements for QWE through the work experience they complete to become a Fellow, provided that experience gave them the opportunity to develop the competences in the Competence Statement and could be signed off by a solicitor.
The SRA explained that partial exemptions from the SQE1 or SQE2 would not be appropriate as it would affect the reliability of the assessment as a whole, contrary to its objective of providing a consistent and fair assessment for all candidates.
The LSB is satisfied that the SRA has given appropriate consideration to cross-qualification of domestic qualified lawyers and does not consider that the SRA’s proposals are likely to create disproportionate additional barriers, compared to the current position.
12. COVID-19 impact on development and implementation
The LSB wished to establish the impact of the COVID-19 pandemic on the SQE work and implementation of the SQE.
The SRA stated that it and Kaplan had both been able to continue developing the SQE and engaging with stakeholders while working remotely. In addition, Kaplan had completed the fieldwork on its piloting before March 2020, when the national lockdown began.
The SRA has extended its transitional arrangements slightly in response to the pandemic and concerns raised by some universities. These will provide a long overlap between the old and new admission arrangements, and therefore give flexibility and choice to candidates, helping to address the impact of COVID-19.
The SRA also gave assurances about measures being put in place to provide additional capacity for remaining Qualified Lawyers Transfer Scheme (QLTS) assessments, which had been delayed due to the pandemic.
The LSB noted that in extending the deadline for the last qualifying law degree, the SRA has in effect provided an additional academic year in which candidates can start their route to admission under the existing framework.
13. Evaluation and monitoring
The LSB was clear throughout the decision notice that effective monitoring and evaluation by the SRA would be key to mitigating the risks and maximising the benefits of the SQE reforms. It has relied on the SRA’s commitments and assurances to monitor and consider the consumer, economic, market, equality and diversity impacts of the SQE.
Overall, the SRA has set out a 10-year evaluation programme, with initial evaluations after two and four years, and a full evaluation after seven and ten years.
At the end of 2020 the SRA will publish a long-term plan for full evaluation of the impacts of the new qualification framework.
The SRA has also confirmed that the Independent Reviewer will publish an annual report on the assessment providers’ delivery of the assessments as well as the SRA’s standard setting processes.
The SRA will also collect, interrogate and publish data on performance in SQE assessments, including performance by protected characteristics and socio-economic background, after each assessment. This will enable it to identify and investigate trends or concerns.
The LSB is satisfied that the SRA has committed to a comprehensive monitoring and evaluation programme. For these reforms to realise their potential benefits and for the risks to be effectively managed, the SRA must deliver on its commitments to monitoring and evaluation. This will include making all reports, data and the SRA’s assessment of these available for public consumption and scrutiny, which will help to build trust and confidence in the new framework.
The SRA must respond to the evidence as it emerges and act swiftly to remedy any weaknesses or concerns.