Disruptive Innovations: The Case of the Solicitors Qualifying Examination (SQE)
For several years now, the Solicitors Regulation Authority (SRA) has been working toward the design and implementation of a single, centrally administered, examination which all prospective solicitors will be required to sit and pass. The formal title of this new assessment is the Solicitors Qualifying Examination (SQE). It consists of two stages. Broadly speaking, SRA has assigned to the first stage (SQE1) the acquisition of legal knowledge over defined fields, such as contract, EU law and dispute resolution. Practical legal skills, such as advocacy and client interviewing, are incorporated into the second stage (SQE2). There is some potential overlap between the two stages. As it is currently crafted, SQE1 contains a component which is focused on developing legal research and legal writing competencies. However, for reasons discussed later in this commentary, the research and writing element may not survive the final iteration of SQE1. Subject to the approval of the Legal Services Board (LRB), which will consider the final version of the SQE later this year, the new examination will replace all existing solicitor qualifying routes from the autumn of 2021.
The characteristics of the SQE, and the governance structures within which it is proposed that SQE will be embedded, have gradually begun to emerge from various sources, including the published reports of SRA initiated consultations and the report of a pilot study of SQE1, which was published in July 2019 by the educational institution which the SRA appointed to develop, test and eventually run the SQE - Kaplan.
One highly significant source of information about how SQE is likely to play out in the legal education and training landscape is the SRA’s recently published list of training providers. These are organisations that will “deliver SQE education, tutoring or training services...and/or produce SQE-related study materials and resources…” (SRA website). Although it is provisional and incomplete, the list is bound to raise concerns that, without producing any discernible benefit, SQE has the potential to disrupt existing networks of university/HE law schools, and to undermine the long collaboration which exists between those law schools and academic law publishers - thereby needlessly disrupting the values underpinning legal education which law schools and law publishers have worked through in common.
One must be careful not to overstate the case. The published list is clearly a work in progress. Moreover “established” university law schools are currently well represented in the list, which includes two University of London colleges (Goldsmiths and City), De Montfort University, London Metropolitan University and the universities of Hertfordshire, Staffordshire, Nottingham Trent, Westminster, Wolverhampton and Worcester. They are joined by three institutions with established track records in the area of law vocational programme provision: Bloomsbury Professional, BPP University Law School and University of Law. However, with strong criticism over the merits of SQE being voiced by a number of existing qualifying law degree and Legal Practice Course providers, institutions that have not specialised in law teaching and research, or in the publishing of law-related research monographs and articles, will take on the role of SQE training providers in disproportionate numbers. It is the organisation that can boast that it has “the UK's largest online legal CPD Library” (Data Law Limited); or the one that can produce “... short, concise guides that offer a solid grounding in the general knowledge required for City interviews and internships” (City Career Series); or the one that specialises in “career-focused online distance and blended learning courses” (Arden University) that will eventually sustain the SQE.
If it is possible to identify one value that has been shared by the majority of qualifying law degree providers over the past 30 years or so, it is that the optimum model of legal education is delivered, not by legal skills training specialists (e.g. New Heights Training,) but by academics whose teaching is underpinned by the research monographs, articles and textbooks which they write. The inclusion in the list of two leading law publishers (Oxford University Press and Routledge) notwithstanding, it is a value which the SQE framework is bound to disrupt.
Some arrangements are simply crying out to be disturbed. A disruptive innovation is not necessarily an unwanted innovation. Often disruptive innovations are justified on the basis that the status quo has brought about certain recurring inequities. At the heart of the SRA’s enterprise was always the promise that the SQE framework would not only ensure consistent educational standards among aspiring solicitors (SRA 2020, p. 6), but would also improve access to the solicitors’ profession “...by removing artificial and unjustifiable barriers” (SRA 2020, p 6). That being the case, it is unfortunate (to say the least!) that a significant divergence of opinion has emerged between Kaplan on the one hand and the SRA on the other over how to interpret the data from the SQE1 pilot relating to the performance of the black and minority ethnic (BAME) cohort of candidates who participated in the pilot.
The pilot of SQE1 was held between 20-22 March 2019, with a total of 316 candidates participating. Kaplan published its findings and recommendations from the pilot study on 30 July 2019. Worryingly, Kaplan found that the legal research and writing (practical legal skills) element of SQE1 might potentially produce racially discriminatory outcomes. As a result of these findings, Kaplan recommended that the “...Stage 1 skills exam in its current form should not be part of the SQE” (Kaplan 2019, p. 10). Kaplan’s findings were confirmed by an independent reviewer (Geoff Coombe) who the SRA appointed to ensure that Kaplan’s oversight of the pilot conformed with best educational practice. Coombe also felt that the legal research and writing element of SQE1 should be “removed from the live exam” (Coombe 2019, p. 14), because “...inclusion of these types of tasks in the Stage 1 SQE threatens the likelihood of progress of certain candidate groups. Worst still it could be argued that inclusion of this nature and style of assessment in the live SQE raises the risk of discriminating against some candidate groups". (Coombe 2019, p. 14).
SRA’s interpretation of the pilot data is radically at odds with Kaplan’s and Coombe’s. Although it agreed to keep the research and writing skills component under review, SRA concluded that the problem was not one of discriminatory design but “...a pattern of differential performance by protected characteristic and social background across higher education and professional assessment…” (SRA 2020, p. 8), “...including in the current system of solicitor qualification” (SRA 2020, p. 14).
There can be no doubting the fact that what has come to be referred to as the BAME attainment gap did not first arrive with SRA’s SQE proposal. However, whilst the SRA may have raised a plausible defence against the charge of racially discriminatory design in its assessment method, by acknowledging that the pattern of discrimination that affected the SQE1 pilot outcome will, in all probability, continue (see SRA 2020, p. 8), SRA implicitly concedes that, at least in terms of access to the profession, SQE is unlikely to disrupt the status quo in a positive way.
November 2021 is when the “first sitting for SQE1 is likely to be” (SRA website). That is still some time away. Time enough, for sure, to redesign the legal research and writing (practical legal skills) component. Time enough to remove it entirely from SQE1. Time enough to extend, and further diversify, the list of SQE training providers. But I doubt there is now enough time to ensure that the flaws that exist in the current legal education and training landscape are exposed to the right kind of disruptive influences.
Solicitors Regulation Authority, Solicitors Qualifying Examination (SQE) Briefing, February 2020. https://www.sra.org.uk/globalassets/documents/sra/news/sqe-briefing.pdf?version=49123a
Kaplan, Report on: SQE Stage 1 Pilot, 30 July 2019. https://www.sra.org.uk/globalassets/documents/sra/research/kaplan-report-sqe1.pdf?version=4a335a
Geoff Coombe (SQE Independent Reviewer), SQE Stage 1 Pilot Findings, June 2019https://www.sra.org.uk/globalassets/documents/sra/research/independent-reviewer-sqe1.pdf?version=4a3384