by Dr Jessica Guth, Leeds Beckett University on behalf of the SLSA Executive Committee
On the 25th April the Solicitors Regulation Authority announced that it was indeed launching the Solicitors Qualifying Examination (SQE) meaning that in order to qualify as a solicitor, candidates will need to:
- Have passed SQE stages 1 and 2 to demonstrate they have the right knowledge and skills
- Have been awarded a degree or an equivalent qualification, or have gained equivalent experience
- Have completed at least two years of qualifying legal work experience
- Be of satisfactory character and suitability.
(For the details of the SQE, see the SRA webpages)
There are a variety of problems with the SQE, not least the lack of support for the proposals across the academy and the legal services sector (see for example in the Law Society Gazette and the consultation responses themselves) but for the purposes of this blog I want to focus on two in particular: (i) the potential implications for socio-legal studies within the law school curriculum, whether that’s for socio-legal approaches to core or standard subjects or socio-legal courses and modules and (ii) the equality and diversity implications raised but not addressed by the SRA.
The SQE will, according to the SRA, be the mechanism for testing the knowledge a solicitor should know and what a solicitor should know is laid down the SRA’s competence statement. Leaving aside that the SRA seems to use concepts of knowledge and skills interchangeably referring to the competence statement as setting out what solicitors should be able to do and as the bedrock of what a solicitor should know, the statement which is made up of a set of competencies and a Statement of underpinning Legal Knowledge (SULK) reads rather like a syllabus of ‘rich man’s law’. It doesn’t leave much room for socio-legal approaches or anything that isn’t taught in a practice relevant way.
The SULK covers, Ethics, Wills, Tax, Property law, Criminal Law and Evidence, Civil and Criminal Litigation, the Law of Organisations, Torts, Contract, English and Welsh Legal Systems, Constitutional and EU Law. It does not include things like family law, employment law, social welfare law or immigration law. It does not include contextual understanding of how law operates in society, it does not include an understanding of different approaches, such as feminist or queer approaches to law, or how they might shape our understanding of law and legal problems. It does not, it seems require any context at all. If law schools are to incorporate preparation for the SQE, which will examine this knowledge by way of multiple choice questions, into their degree programmes in some way, there is a real risk that socio-legal approaches and socio-legal modules or courses will be pushed out.
In addition, having a degree programme which is designed to prepare students to pass the SQE is likely to look rather different to one which is designed to teach students about law. The focus of the former will be on those subjects required for the SQE and those skills necessary for the examination. Engagement with other, perhaps more academic skills will have to take a back seat, consideration of even those topics included in the SQE from a socio-legal or non-practical stand point will have to be pushed to the margins if there is room for them at all, optional socio-legal modules will be few and far between, if indeed they can be fitted into the curriculum at all. So why does this matter?
It matters because studying law is about more than learning legal rules and how to apply them; it is also about analysing, evaluating and thinking deeply about legal problems and issues and our approaches to them. It matters because the subjects mandated by the Competence Statement and the SULK in particular represent a particular legal world that is comparatively meaningless to most people and which does not impact on most people’s lives. Legal issues which do impact on most of us are pushed out as less important or irrelevant. It matters because the future global legal problems will not be solved by people who can learn legal rules, apply them and then answer some multiple choice questions but by people who can think deeply and critically about a variety of issues from a variety of perspectives.
In 2014 Professor Chris Ashford and I highlighted the importance of a liberal legal education and socio-legal approaches and hoped that the voices of those advocating such approaches would be heard in the development of a new regulatory framework. It appears those voices have not been listened to. However, the finer details of the SQE are yet to be finalised, there is to be extensive development and testing and law schools do not have to turn themselves into SQE factories. There may be ways to maintain a balanced, liberal and socio-legal curriculum and prepare those students who wish to practice law for the SQE. So now is the time to stress the importance of socio-legal approaches to make sure that they are not written out of law curricula across the sector and that students can continue to benefit from them. Now is the time to remind everyone that most law students do not go on to become solicitors and that law degrees are valued qualifications for all sorts of reasons, not least because of graduates’ ability to think. And now is the time to think carefully about how we teach law to our students, the ones who want to go on to work in the legal services sector and the ones who do not.
Our second concern relates to the equality and diversity implications of the SQE and we do not feel that these concerns have been addressed. Throughout the consultation process there has been a notable absence of engagement with equality and diversity issues although an impact assessment was eventually published. The SRA have repeatedly suggested that the SQE will be cheaper that the current route to qualification but they have also repeatedly failed to provide the evidence for that assertion. It is hard to see how it could be significantly cheaper. A degree remains a requirement and while it is possible that some undergraduate law degrees will prepare students for the SQE, it is likely that additional preparation and/or crammer courses will be the norm, these will not be cheap. In addition the SQE itself will need to be paid for and while the SQE 1 (focused on knowledge and based on a multiple choice tests) may prove relatively cheap to run once it is set up fully, the SQE 2 – the skills focused part of the exam, will require significant resources the cost of which intending candidates will have to cover.
To make the argument for increasing diversity on the basis of a significant reduction in costs is disingenuous (See also John van der Luit-Drummond writing in the Solicitors Journal or the Guardian Article by Tess Reidy). Of course we cannot expect changes to the regulation of how solicitors qualify to, on their own, sort out the problems with equality and diversity within the profession but we can surely expect them to take some positive steps towards opening up access. The SQE does not do this. The SRA has argued that the SQE will allow a wider variety of routes, including earn while you learn routes to qualification and while we welcome that in general terms, we continue to be concerned about the way the SRA sees the profession as one homogenous whole and has not considered the way in which the route to the top firms remains a very exclusive one which is impossible to navigate for those without significant human and social capital and/or very good career advice. The consultation response submitted by the four learned associations jointly articulates our concerns:
“We fully support proposals that widen access. But this proposal is likely to have the reverse effect. Most solicitors’ firms, particularly the largest, which do the most complex work, will continue to seek students who have achieved excellent grades in high quality programmes with substantial intellectual content. […] Students of modest means, predominantly from low and marginal socio-economic groups, and disproportionately from BME communities, are likely to take vocationally-oriented law degree programmes producing SQE1-ready students who will not be sought after by most law firms.”
It is quite clear from the summary of the consultation responses provided by the SRA that there is no confidence in the fact that the SQE has satisfactorily addressed the question of equality and diversity and that it has the potential to make matters much worse than they currently are.
The SRA claims to have listened throughout the consultation but I am not sure they have heard what we, and many other respondents to the consultation have had to say. As SLSA members I think it is crucial that we all continue raise our concerns and that we actively contribute to discussions within our own institutions regarding how to respond to the introduction of the SQE and that we keep making the case for socio-legal studies as a vital element of a legal education.
As a sociologist, I suppose my first question with a proposal like the SQE is to ask what is the problem to which this reform is supposed to be the answer. While I haven’t fully engaged with the process, I actually find this rather hard to work out. There are some comments about lack of knowledge – but in areas that won’t be tested – and about lack of skills – but they aren’t really going to be tested either. There is an issue about future proofing – but that would imply a limited role for tests of knowledge – we don’t know what the law will look like in 30 years’ time, so what is the point of committing the current position to memory? The most persuasive argument might relate to standardizing assessment of wannabe solicitors but – as Jessica point out – this still doesn’t guarantee equal opportunities to get jobs. Arguably this whole package has more to do with generating income for the SRA than any public or professional benefit.
Given this, it is worth thinking about why a socio-legal dimension to undergraduate legal education still matters. Jessica touches on some of the arguments but they should be underlined. First is the ability of lawyers to solve client problems in ways that do not necessarily require the application of law. This why an understanding of society, institutions and interaction matters. I haven’t hung out much at law recruitment events for ten years or so. However, the message I used to get from recruiters was that major firms were looking for two kinds of recruit. On the one hand, they wanted a lot of helots to do hack work from Day 1 on training contracts that were likely to be dead ends. On the other, they wanted to find the senior partners of the future, who might well not have a first degree in law but could think outside the box. I know that one prominent socio-legal scholar, who did not at the time have a law degree, received an offer in the margins of such an event. They would need to understand, the recruiter said, that they might not get to the very top salaries in the firm – but he held out the promise of a level that would have been around 50% higher than most experienced non-clinical professors were making at the time! I don’t see this changing. Indeed it may be more important as a distinction, particularly if hack work succumbs to AI.
Second is the ability to deal with a diverse society, and a diverse world. We are currently still in the grip of a bunch of post-imperial fantasies about our place in the world but these won’t last for ever. The smug pensioners of Dorset and the Cotswolds, who are the real villains of Brexit, won’t live for ever. The country is paying a high price for the limited educational opportunities offered to my generation. We can do better – and we will have to if the UK (or the English) are going to become the poor relations of international trade deals. We need to understand where our partners are coming from and how to defer to them. This isn’t quite Jessica’s message about diversity but it is the one our students will have to live with. Social justice sits alongside self-interest. SLSA needs to talk about both and about our role in creating the kinds of graduates who can deal with whatever comes at them over the course of their working lives. We don’t know what that will be, but we can make a reasonable stab at the tools that will be needed to do that.