The SRA has released its long awaited consultation on the future of the solicitors’ qualification, as part of its Training for Tomorrow work. It prays in aid widely varying LPC pass rates, uncertainty about the comparability of law degree courses and grades, and very low training contract and GDL failure rates as partial justification for some radical change. Solicitors who never really had to be graduates will still not have to be graduates, but will likely have to demonstrate graduate level abilities. The usual, probably optimistic, claims about flexible pathways opening up diversity are made although not played up as much as perhaps they might be. It is a confident, interesting and ambitious document preparing the ground for the abolition of the QLD and its replacement by a market driven mixture of:
- traditional law degrees (which may seek to train students for SRA knowledge requirements only minimally) – let’s call these the liberal law schools;
- practice driven law degrees (which will seek to get students as far along the knowledge and skills requirements as they can) – let’s call these the almost-practice ready law schools; and,
- a potentially significantly more complicated smorgasbord of postgraduate options to prepare students for knowledge and skill elements of the so-called ‘super exam’ (the SQE – in reality a suite of assessments – some taken on qualification and some taken a good deal earlier).
I would surmise that it will drive academia, and many connected with practice, a little crazy with anxiety.
The emphasis of the SRA’s approach is on the hope that through assessing outcomes (knowledge and skills are to be assessed separately) the need to control the processes of education might be done away with or significantly reduced. Educators are free to innovate. Students are free to choose. In particular, there is a hope that the LPC (and at least some of the cost associated with it) may wither on the vine of – as yet unmodeled – more flexible models of education and training. For this to save costs, the assumption seems to be that degree courses, and work-based learning, can absorb more of the LPC’s role with a lighter or cheaper diet of postgraduate courses – especially for those emerging from the almost practice ready law schools.
Whilst the abolition (if it comes) of the QLD might have been hoped to remove something of a dead hand on the undergraduate law degree, we can expect a fresh incursion into the liberal law degree through the SRA’s promise to “drive academic quality”. Centralised assessment of core knowledge allows the SRA to test the product of any legal educators staying in the practitioner focused legal education game. Undergraduate programmes, in so far as they seek to teach their students to meet the knowledge requirements of the SRA, will have to teach to the SRA’s central assessments. Teaching to the test, which did not work well when the Law Society Finals was in place, may work better if the SRA’s tests are an improvement on days of yore, but there has to be a significant likelihood that – beyond the initial frenzy of adaptation – it will also inhibit curriculum innovation at institutions seeking to teach to the SRA’s assessments settle into a process of providing courses designed to get decent enough pass rates.
The extent of this concern depends – my initial reading suggests – on two factors. One is the extent to which the SRA prescribes the knowledge elements that might get thrust into the undergraduate law degree. Para. 41 of the consultation suggests this would include: ethics and professional conduct (assessed pervasively in all knowledge based (and skills based?) elements); wills and probate; taxation; business law and practice; property law; torts; criminal law and evidence; civil litigation; contract law; trust and equitable wrongs; constitutional law; EU law; human rights; and, the English legal system. The SRA will also prescribe the detailed expectations around these topics. This may reduce or increase the size of what looks like a rather considerable footprint but a reasonable assumption appears to be that it will increase the size of the footprint, unless (say) the amount of contract or property or trusts that is necessarily taught is dramatically reduced. In the nearly practice ready schools it will be interesting to see how their curricula (already dominated by the Foundation subjects) react.
At least there may be less marking, as objective computerised assessments are promised to assess knowledge. Law teachers will be designing simulated assessments that ape these rather than pouring over illegible scripts. Perhaps we can get Riverview to develop a machine learning tool to do this for us.*
The second element is the extent to which law schools seek to defend their (our) much proclaimed belief in the liberal law degree. An interesting question is how many law schools will opt for the almost practice ready option and how many will stick to a liberal law school model (and will any become more liberal – cutting back on the foundations subjects traditionally taught – with some human resourcing difficulties)? Is it possible to teach the above knowledge areas but do so in a liberal law degree kind of way? Maybe, maybe not. Would the liberal law schools be willing to say: we don’t teach to prepare you for these tests – you must study for them yourselves after or alongside your studies with us.
The SRA’s way of anticipating the claim that the wide specification of knowledge requirements infringes on academic freedom is to make the observation that law schools are free not to teach some or all of these areas. They do not have to claim to prepare their students for the SRA knowledge assessments. This is a fairly significant way of the SRA saying the liberal law degree is no concern of ours. If you want to emphasise that your degree programme has benefits other than for practice then sell it to students who do not want to be practitioners. It leaves hanging, of course, the benefit of the liberal law degree to neophyte lawyers. It also leaves hanging the possibility that liberal law schools will claim (and who knows whether this will be right or wrong) that a liberal law degree is still the best preparation for the SRA assessments – even though the students will be preparing and studying for them on their own dime. They will have plenty of good graduates who will do just fine under this model and we will have little basis for saying they would do better or worse under the almost ready to practice model unless those almost practice ready students start to do significantly better.
So the SRA are saying, in many respects not unreasonably, that it is up to them as regulators to define the competences they expect from admitted members and it is up to education providers to decide if they want to educate students to meet those competences or to allow them to do so after or alongside ‘traditional’ education. What is couched as allowing universities to choose whether to provide a liberal law degree or not, is in fact as likely to be driven by the preferences of students and, importantly, employers. We may well see the informal segmentation in employment opportunities for law students that we currently have lead to a more formal divide in processes and content of undergraduate legal education. If we assume, in broad terms, that large commercial firms generally recruit from the Russel Group Universities, then we might also speculate that those large law firms may be willing to pay for the additional – post-degree training necessary – to protect the liberal law degree. The calculation may not be that law firms love liberally educated law students. There is a healthy case to be made that they are rather fond of liberally educated non-law students and it’s the students rather than the quality of the education that I think the firms really like.
The calculation may more likely be that the Russel Group law schools will stick to their liberal law school guns, decline – claiming that liberal law schools bring far deeper benefits than almost practice ready law schools – to adapt significantly to the new SRA knowledge subjects and rely on the fact that they attract (for how long?) the stronger cohort of students that the law firms prefer to recruit from. The larger, wealthier firms that dominate the visible recruitment market for trainees may be willing to pay for an LPC-like course for those students and so protect the position of the Russel Group (or a top slice of the Russell Group). The other law schools, in a stiffer competition for students and employability ratings, might compete to adapt more fully to the SRA criteria. An interesting question is whether, should something like this happen, it increases diversity or solidifies barriers into large commercial practices. The SRA is flirting with the idea of much more granular assessments of students which may allow law firms to seek out ‘top of the class’ SQE scores . Research in the US has suggested that talent measured in this way is much more diverse than talent as law firms measure it when they recruit. Yet, we also have a huge experiment, driven by market values and prejudices, in how different segments of the student and lawyer population will be trained. Interesting times. Someone should research it. Someone with lots of money, patience and ingenuity.
There are lots of other issues to think about here. But let me mention just two. A proposal like this throws into the sharpest relief the failure of the regulators to cooperate. What happens if the BSB comes out with radically different ideas about what it wants? Does that pull law schools in impossibly different directions? Will it solidify a two tier system (should my tentative prediction that it emerges prove right). Maybe the BSB will just have to adapt to its larger, quicker cousin.
The second is about the nature of the knowledge footprint, its assessment and its inflexibility as the SRA are currently thinking of it. One oddity is that skills are to be assessed on or close to qualification whereas knowledge is to be assessed on a modular basis before (presumably a long way before) qualification. We can certify a solicitors competence on the basis of out of date knowledge would be my quick assessment of that approach. Practicality may require some assessments come earlier than other, so I recognise my quick assessment is a little harsh, but it may be more important that knowledge is assessed close to qualification rather than long before, at least knowledge directly related to the key areas of practice that the lawyer will be undertaking.
My second comment is that the list of required knowledge is interestingly wide and general in nature. The reason for this is partly to do with the need to certify competence to practice in reserved areas. I would have thought it not beyond hope that a more flexible regime could be designed which required solicitors (and/or their regulated entities) ensure that they (or any solicitor working in the regulated entity) have passed the knowledge assessments relevant to their areas of practice. After all CPD is moving towards this kind of assessment and the SRA is keenly motivated by the desire to regulate proportionately. If the thirteen areas of knowledge are in the list because solicitors may well need them if they were – at some point – to practice in all the reserved areas, we should recognise that this is not likely to happen and can be dealt with in other ways. And in any event, many of the knowledge areas are not about reserved activity in any meaningful sense at all. I surmise, we could do with chopping a few – quite a few- fingers off the next dead hand.
* I am not being entirely facetious.