Training for Tomorrow: The Reform of Education and Training Requirements for English and Welsh Solicitors

This article originally appeared in The Bar Examiner print edition, Winter 2017-2018 (Vol. 86, No. 4), pp 19–29.

By Julie Brannan

The reputation of solicitors in England and Wales, both domestically and internationally, is justifiably high. But the Solicitors Regulation Authority (SRA), the regulatory body for solicitors in England and Wales, needs to ensure that its process of certifying the educational standards of solicitors is as effective as it can be, without creating barriers that might prevent talented individuals from qualifying as solicitors.1

In 2013, the SRA embarked upon a cradle-to-grave review of its education and training requirements for solicitors. We called this Training for Tomorrow.2 The resulting reforms, which are still under way, have a target completion date of 2020. This article explains the background and aims of the SRA’s reforms, discusses our accomplishments to date, and outlines our plans for the future. By 2020 we expect to replace the current system of regulation—which resides in the hands of independent SRA-authorized education and training providers and is focused largely on checking that candidates have attained certain qualifications, rather than on ensuring that candidates can demonstrate mastery of the skills and knowledge required for competent practice as a solicitor—with the introduction of a new national licensing examination. While eliminating the rigid structure of the current pathways-based system of admission that restricts innovation and access, the new system will also shift the final step for admission from a process that makes thousands of training providers responsible for confirming to the SRA that would-be solicitors have met the required standards to a more fair, objective process. Given the challenge of ensuring common, consistent standards among the large number of education and training providers, the SRA will introduce a national licensing exam, which it will control, and through which all solicitors will have been assessed against a single, consistent standard.

This article also argues that education and training requirements are not an end in themselves, but a tool which regulators can use to ensure professional standards and thus to protect consumers of legal services. The wider context is a regulatory approach that increases flexibility and freedom to innovate and imposes regulatory requirements only where needed.

Regulatory Reform and the Legal Education and Training Review

The genesis for our reform program was an independent review of the education and training of lawyers in England and Wales, the Legal Education and Training Review (LETR), which began in 2011 and was completed in 2013.3 LETR looked at whether the legal education and training system remained fit for its purpose, given changes to the market for legal services and reforms to the regulation of solicitors brought about by the Legal Services Act 2007.4

Separation of Representative and Regulatory Functions

The Legal Services Act 2007 required representative and regulatory functions in the legal services market to be separated. As a result, the Law Society of England and Wales (the professional body for solicitors) established the SRA as an arm’s-length regulatory body charged with regulating solicitors in the interests of consumers of legal services in order to further the regulatory objectives specified in the Act.5 The objectives include requirements both to protect the interests of consumers of legal services and to promote a strong, effective, independent, and diverse profession. We see these objectives as complementary: the more diverse the talent pool from which solicitors are drawn, the higher the standards of practice and the better consumers are protected.

We want to support legal market growth and encourage innovation in legal services so that we can help tackle the access to justice crisis for the poorest and improve access for ordinary people and small businesses.

While LETR was the genesis for Training for Tomorrow, the context is the SRA’s wider regulatory reform program. We want to support legal market growth and encourage innovation in legal services so that we can help tackle the access to justice crisis for the poorest and improve access for ordinary people and small businesses. Research tells us that 54 percent of adults experienced a legal issue in the last three years; however, only 30 percent of these issues were handled using advice and support—and only 56 percent of this advice and support was provided by a legal professional. This means that 83 percent of adults with a legal issue did not receive help from a legal professional. Similarly, research tells us that over half of small businesses experiencing a legal problem try to resolve it on their own, with 83 percent of small businesses seeing legal services as unaffordable.6 Our approach is to increase flexibility and move from a ­prescription- and permission-based system of regulation (i.e., a system where we prescribe detailed requirements for practice and oblige solicitors to seek our permission whenever they wish to depart from those requirements) toward a system where we rely on competition and consumer behavior to drive quality up and price down. We add prescriptive requirements only where we can find evidence of actual risk. For example, we used to have very detailed requirements around handling client money, such as time limits for moving money from client to office account and vice versa. The net result was that many firms could be in technical breach of our rules when there was no harm to the client. Our proposed new regulations will focus on the core obligation to keep clients’ money safe.

The division of representative and regulatory responsibilities under the Legal Services Act is far from perfect, and the SRA has long argued for complete independence from the professional body. But this division did result in the delegation to the SRA by the Law Society of its statutory functions in relation to the education and training of solicitors. And it therefore meant that those functions needed to be exercised for regulatory purposes, in order to advance the regulatory objectives of the Legal Services Act.

Traditional Input Methods of Regulation

LETR indicated that regulation of professional legal education has historically relied on input methods—that is, specifying such things as periods of study, qualifications to be attained, and time to be served in legal employment—on the basis that successfully completing these requirements should produce the eventual desired outcome of qualifying as a solicitor. The requirement for specified qualifications means that candidates who have acquired knowledge or skills in other ways (for example through work experience, or qualifications we have not specified) still need to incur the time and expense of attaining the qualifications we do specify. We cannot objectively justify such an approach in terms of consumer risk.

Input methods of regulation have advantages—they are easy to demonstrate, to verify, and to measure. But they do not always ensure the desired outputs. Specifying qualifications and periods of study does not necessarily ensure consistent minimum standards of competence, especially where (as with the system in England and Wales) candidates are assessed and qualifications are awarded by a large number of independent institutions. By the same token, input requirements do not guarantee the quality of legal services that are provided to consumers.

Worse still, an input-based system is rigid, restricts innovation, and creates unintended barriers that probably artificially suppress the supply of solicitors. It is based on the idea that regulators know best. We are the guardians of standards. But, on the one hand, we need to work with the profession to understand the changing demands of practice and, on the other hand, we need to recognize educators’ expertise in training students to meet high standards.

LETR pointed out that the SRA’s primary focus has historically been on regulating the pathways to qualification, instead of focusing on end-point standards—that is, the standards that should be achieved for safe practice as a solicitor. We specify pathways in detail and therefore create the rigid structures that restrict access. At the same time, we permit a large number of organizations to train and assess would-be solicitors, which makes it difficult to ensure a common, consistent standard.

A Look at Current Qualification Routes

The two most common routes to qualification consist of an academic and a vocational stage of training. The vocational stage is common to both routes, so the difference lies in the academic stage.

The first route requires individuals to obtain a Qualifying Law Degree. The Qualifying Law Degree is an undergraduate law degree that covers seven foundations of legal knowledge. It is usually completed over three years and has specific requirements regarding the subjects to be studied and the number of credits allocated to the study of law, as well as the number of assessment attempts permitted.

The second route is for students who have obtained a non-law undergraduate degree, in which case they must take a one-year postgraduate conversion course, the Common Professional Examination/Graduate Diploma in Law, an intensive course built around the core curriculum and assessment requirements of the Qualifying Law Degree.

The vocational stage of training for both routes has three components. The Legal Practice Course is a professional postgraduate course aimed at preparing trainees for the work-based learning they will do in training and eventually as solicitors. It can be studied either full- or part-time and consists of two stages: the first covering core practice areas and the rules of professional conduct, and the second consisting of vocational electives focusing on specialized areas of law and practice. It also includes legal skills training and assessment.

The Legal Practice Course is followed by a two-year Period of Recognised Training, which can take place either after or while completing the Legal Practice Course. It consists of structured, supervised work-based learning with requirements to gain experience in at least three distinct areas of law and practice and to acquire certain skills and do certain activities.

A Professional Skills Course, which is studied during the Period of Recognised Training, builds upon the knowledge and skills acquired during the Legal Practice Course and is composed of three compulsory areas and a number of electives.

Finally, before anyone can be admitted, we check his or her character and suitability to be a solicitor. This involves checks on criminal convictions and academic misconduct (such as cheating on exams) as well as financial propriety.

Regulation of Education and Training Providers

The SRA has an elaborate system for authorizing education and training providers (training providers being those law firms and other organizations that provide the Period of Recognised Training and the Professional Skills Course during the vocational stage of training) and for specifying course requirements during the academic stage of training and for the Legal Practice Course. But each university offering the academic qualifications and the Legal Practice Course sets and marks its own assessments.

About 110 universities provide these qualifications. But responsibility for the final sign-off prior to admission lies with the 5,000 authorized training providers, which must confirm to the SRA that their trainees have met the required standards.

Our regulatory regime has few mechanisms to ensure standards across the legal education and training providers on a comparable and consistent basis. The sheer number of organizations involved in assessing students and trainee solicitors makes this difficult. All U.K. universities have external examiners, whose responsibility it is to check standards. But questions have been asked about the effectiveness of this system.7 We know from our own data that pass rates vary across Common Professional Examination and Legal Practice Course providers from below 50 percent to 100 percent, but we do not know why. The reasons could be various: different caliber students, varying quality of teaching, or discrepancies in the standards of assessment.

And there is no system at all for law firms to use in benchmarking their sign-off of trainee solicitors. Little or no guidance is available to help law firms understand where exactly to draw the line between trainees who are competent to practice and those who are not.

The SRA’s Response to LETR: Training for Tomorrow

Our response to LETR was to initiate Training for Tomorrow, launched in October 2013, to undertake a comprehensive review of education and training requirements for solicitors. We identified at the start the SRA’s core objectives in regulating education and training, shown in the following sidebar.

We started our work with a review of professional standards, leading to publication of a new Statement of Solicitor Competence. Defining the core competences needed for practice as a solicitor then enabled us to implement a new approach to maintaining competence post-­admission. And now we are developing a new assessment framework for admission to the profession, which will enable us to check that candidates for admission as a solicitor can demonstrate the competences in the Statement of Solicitor Competence on a consistent and comparable basis.

Developing a Statement of Solicitor Competence

We began with the most widely accepted and credible definition of competence: “the ability to perform the roles and tasks required by one’s job to the expected standard.”8

We then worked with consumers of legal services, and with representatives from the profession and the academic community, to identify the required skills and knowledge for practice as a solicitor. We held workshops, convened focus groups, and commissioned research into the views of about 2,000 stakeholders—both solicitors and their clients. We established and received advice from an independent Delphi group (using the broad principles of the Delphi method to solicit advice from a group of anonymous experts in order to foster objectivity and prevent participants from influencing one another).9 We asked all our stakeholders to define the core skills and knowledge that they would expect a solicitor to have. And through this we developed a generic, activity-based model for describing the core skills that the public should be able to expect from a solicitor and defined them in the Statement of Solicitor Competence, which we published in April 2015.10

The Statement of Solicitor Competence is divided into four broad areas, each broken down into detailed outlines:

• ethics, professionalism, and judgment
• technical legal practice
• working with other people
• managing oneself and one’s work

The statement applies to all areas of practice, and to a newly qualified solicitor as much as to a partner with 20 years’ experience. Individual solicitors need apply it to the demands of their own practice. These will vary: interviewing a child at a police station is different from interviewing the chief executive of a public company. But the same core skills apply: obtaining all relevant information through active listening and effective questioning that uses clear, succinct, and ­jargon-free language.

The Statement of Solicitor Competence is accompanied and supported by two other documents. The Statement of Legal Knowledge sets out the knowledge that solicitors are required to demonstrate at the point of qualification in the form of a detailed outline covering 13 subjects.11 The Threshold Standard defines the minimum performance standard in relation to the competences in the Statement of Solicitor Competence for safe practice as a solicitor.12

Reforming Continuing Competence Requirements

Next, we took the Statement of Solicitor Competence and used it in the reform of our requirements for continuing professional development. Historically, we have required every practicing solicitor to undertake 16 hours of continuing professional development per year. The regulation of hours, rather than the purpose of the training, is a classic example of the input method of regulation.

This new approach, rather than being a one-size-fits-all directive with little focus on the appropriateness of the professional development undertaken, allows solicitors flexibility in choosing the right type of training for themselves and their firms, resulting in training that more directly benefits their overall performance and standard of service.

In contrast, our new approach to continuing competence, which took effect in November 2016, focuses on an existing regulatory obligation to consumers: to provide a proper standard of service by staying up to date and competent.13

Instead of simply checking off the completion of 16 hours’ training per year, solicitors must reflect on their work against the demands of the Statement of Solicitor Competence and undertake the training they need to keep up to date and maintain their competence. They must then make an annual declaration that they have accomplished the continuing professional development requirement. We support solicitors and firms with an online toolkit that contains guidance, template forms for planning and recording their training, and case studies for various practice scenarios (e.g., solo practitioner, small firm, etc.). We have published webinars, recorded videos, and held live events with the goal of explaining to solicitors how to reflect on the quality of their work, how to identify and address training needs, and how to record and evaluate training that has been completed.

This new approach, rather than being a one-size-fits-all directive with little focus on the appropriateness of the professional development undertaken, allows solicitors flexibility in choosing the right type of training for themselves and their firms, resulting in training that more directly benefits their overall performance and standard of service.

Introducing a New Assessment Framework for Admission to the Profession

The final stage of our work has been to introduce a system to check that solicitors are able to demonstrate the competences defined in the Statement of Solicitor Competence at the point of admission. The system needed to address the fundamental problem with the current regulatory framework already described: inadequate assurance of consistent end-point standards.

By easing the requirements currently imposed on legal institutions—requirements that are grounded in input-based regulatory methods—we will equip legal institutions with the ability to experiment with alternative teaching methods, thereby encouraging a competitive and more cost-­effective system.

Other factors also indicate the need to move away from the current multiple pathways and input-based measures. The split between academic and professional stages of training means that students often learn substantive and procedural law separately. They may not be adequately assessed on the core professional competence of applying the legal principles they have learned in the academic stage of training to practical transactions or to solving clients’ problems.

The Legal Practice Course (the mandatory professional postgraduate course aimed at preparing trainees for the work-based learning they will do in training and eventually as solicitors) came into being before fees were introduced for degrees. It now costs £28,500 (approximately $36,000), plus living expenses, to obtain an undergraduate degree in England. Given the cost of the degree, the SRA felt that it was no longer acceptable or fair to force graduates to incur the additional cost of around £15,000 (approximately $20,000) for the Legal Practice Course on top of a degree. Granted, these figures are low compared to the cost of qualifying as an attorney in the United States, and the government of the United Kingdom provides loan funding for the costs of higher education. But these costs create a barrier that can stop able candidates from lower socioeconomic groups from qualifying. Our prescriptive requirements prevent innovation and restrict competition among training providers and therefore drive up costs. By easing the requirements currently imposed on legal institutions—requirements that are grounded in input-based regulatory methods—we will equip legal institutions with the ability to experiment with alternative teaching methods, thereby encouraging a competitive and more cost-­effective system.

Finally, a characteristic of the English and Welsh system is the requirement for the two-year Period of Recognised Training (the structured, supervised work-based learning period mentioned earlier). We know that many trainees who have obtained all the necessary academic qualifications for admission as a solicitor struggle to get a training contract, and so just get stuck. This “training contract bottleneck” is a major constraint on new entrants to the profession. There are many more candidates with the right academic qualifications than there are training contracts. But in the English system they cannot qualify without a training contract, so they never get to admission.

The New Solicitors Qualifying Examination

Our solution to these issues is the introduction of the Solicitors Qualifying Examination (SQE), a new national licensing examination for admission as a solicitor in England and Wales. This will require all would-be solicitors to demonstrate the competences in the Statement of Solicitor Competence, and the knowledge in the Knowledge Statement, to the standard specified in the Threshold Standard.

The SQE will be divided into two stages: SQE stage 1 will assess legal knowledge and SQE stage 2 will assess legal skills. Other characteristics of the SQE are as follows:

• Ethics questions will pervade both stages. They will not be labeled explicitly as questions on ethics so that it will be for candidates to recognize that a particular question or scenario raises a point of ethics or professional conduct. The approach focuses on ethical concepts as they apply in a solicitor’s practice, rather than compliance with the rules of professional conduct. Because universities will be preparing candidates for this assessment, our expectation is that this approach will encourage the development of ethics teaching in universities.
• We will appoint a single assessment organization to develop and administer the SQE with us. This means that all solicitors will demonstrably have been assessed against a single, consistent standard. This will be fair to students and provide the gold standard of consumer protection.
• At the same time, we will no longer prescribe pathways or sequences. We will not have input requirements about how candidates prepare for the SQE. We will not require candidates to gain particular qualifications. Universities who wish to be involved in professional legal education must prepare students for independent assessment through the SQE.
• The demands of the assessment will drive appropriate learning. We do not need to specify, as inputs, what candidates need to know, because training providers will design their curricula around the requirements of the SQE, and students will learn what they need to learn in order to pass. We will publish a detailed Assessment Specification explaining the content and design of the SQE, and we intend that to drive the development of the appropriate courses and the appropriate learning. The Assessment Specification will be designed with input from expert practitioners and academics.
• The Assessment Specification will set out what is to be examined, and how. But it will not specify how best to prepare for assessment. Education and training providers will be free to use their expertise to teach in the ways that suit their students best. They will be free to make more use of educational technologies, to integrate professional legal education into other courses (from management to technology, and from finance to modern languages), and to design and schedule their teaching in ways that recognize the different life circumstances and learning styles of their students.
• We will publish data on SQE pass rates by teaching institutions and by law firms involved in work-based training. This will influence students’ choices of where and how to train and will incentivize organizations to offer high-quality training.

How Will the SQE Fit into the Overall Current Admission System?

Passing the SQE will be only one of four requirements for admission as a solicitor in England and Wales.

We will continue to expect solicitors to have a degree-level qualification or equivalent experience. This degree need not be in law, but the ability to think critically and to work independently, which any degree-level study develops, is essential for practice as a solicitor.

We will continue to require at least two years’ practical work experience, but we will be more flexible in our requirements. We will permit any experience that gives a candidate the opportunity to develop the competences in the Statement of Solicitor Competence and to be socialized in the ethical practice of a solicitor. Qualifying work experience could include working as a paralegal, working in a student law clinic, or law firm placement during a degree program.

We will require solicitors to confirm to us that a candidate’s qualifying work experience has been completed, but not that his or her professional competences have been developed to the right standard. We will check that through the SQE.

Overall, we hope that more liberal ways to fulfill the practical work experience requirement will ease the training contract bottleneck and that assessing work experience through SQE stage 2 will address concerns about the consistency of sign-off by law firms.

Although we will not specify pathways, we expect that many candidates will in practice take SQE stage 1 at the end of their degree or other classroom learning; we expect that most employers will wish trainees to have passed SQE stage 1 before they begin their practical work experience. We expect that most candidates will need a substantial period of practical experience to prepare for SQE stage 2 and therefore that SQE stage 2 will be taken at or toward the end of their practical work experience.

Finally, we will continue to require demonstration of satisfactory character and suitability.

What Will the SQE Look Like?

In June 2017, we published a draft Assessment Specification.14 It will be tested before the SQE goes live, so it may change, but we describe our current thinking below.

SQE Stage 1

The first stage of the SQE will assess candidates’ functioning legal knowledge—that is, their ability to use their legal knowledge to address clients’ problems in contentious or transactional contexts. We will use computer-based objective testing and a range of question formats, including single best answer questions, extended matching questions, and multiple-choice questions.15 We will use modern statistical methods to ensure a consistent standard between candidates and over time. We have been influenced by, and taken advice from, the National Conference of Bar Examiners, whose assessments, in our view, have contributed to the high standing of U.S. attorneys internationally.

The topics we are proposing to assess in SQE stage 1 are shown in the SQE Stage 1 sidebar below. These assessments will include embedded ethical questions. They will cover a combination of substantive and procedural law. For example, Criminal Law and Practice will assess a candidate’s ability to determine whether his or her client has a defense to a criminal charge, using the candidate’s knowledge of the elements of criminal offenses, as well as testing the candidate’s knowledge of criminal procedure. Business Law and Practice will assess candidates’ knowledge of contract law as well as company procedure. We believe that this approach will enable us to assess the core analytical skills required by a solicitor.

SQE stage 1 will also include an assessment of candidates’ legal research and writing skills. This assessment will comprise one research task and two writing tasks. Candidates who pass this module should be reasonably prepared for their legal services workplace experience. We expect candidates to further develop their skills in legal research and writing over the course of their workplace experience, and these will therefore be tested at a more demanding level as part of SQE stage 2.

SQE Stage 2

The second stage of the SQE will assess practical legal skills. It will test candidates’ ability to carry out practical legal tasks through five assessments, each of which will include one or more tasks that a newly qualified solicitor would be expected to be able to carry out with minimal or no supervision. The stage 2 assessment topics are shown in the SQE Stage 2 sidebar below.

The skills to be assessed include both written and oral skills, as reflected by the assessment methods. Client Interviewing, Advocacy/Persuasive Oral Communication, and Case and Matter Analysis will be assessed through role-play exercises with trained actors playing the parts of clients, colleagues, or decision makers. For the Legal Research and Written Advice assessment, candidates will use a legal database to complete a research task and produce written advice for a client. For the Legal Drafting assessment, candidates will produce legal documents, both freehand and by reference to an electronic precedent bank.

The assessments are focused on skills, not legal knowledge. For example, an assessment might test whether a candidate can conduct an interview with a client who is confused, forgetful, emotional, or unreliable, or with whom the candidate has to establish credibility. The assessments are not designed to test recall of legal knowledge; candidates will be provided with relevant legal materials. But getting the law right is clearly a core competence, so we will expect candidates to be able to use the legal materials to provide accurate legal advice. Candidates will also be expected to make sound ethical judgments and, as in stage 1, ethical issues will pervade stage 2.

We are currently proposing that the assessments be based in a limited range of practice contexts. These practice contexts reflect the entitlements to practice that qualification as a solicitor confers, and the significant numbers of solicitors practicing in commercial and corporate law.

As we expect that candidates will sit their stage 2 assessments after a period of practical work experience, we recognize that candidates’ work experience may be in other contexts. We recognize the need to ensure that we are assessing all candidates fairly and on a level playing field, regardless of the sector in which they have gained work experience.

We will therefore test a range of options before the assessment goes live: these will include assessment in more contexts (although this may drive cost up and consistency down); assessment in a single context of the candidate’s choice; assessment in any or all of the five contexts; and assessment through a more synoptic approach in which the case studies cover a range of practice areas.

This form of skills assessment will be more labor-intensive, and therefore more expensive, than the predominantly computer-based assessment methods of SQE stage 1. Assessors will need to be recruited and trained and a network of assessment centers created. But we have been assessing would-be solicitors through this form of skills assessments (as part of the Legal Practice Course and on the Qualified Lawyers Transfer Scheme) for many years. Many academics and expert practitioners have experience as assessors, and we will draw on that pool of expertise.

What About International Lawyer Candidates?

Each year, about 1,000 qualified lawyers from other jurisdictions requalify as solicitors in England and Wales. They currently do this through the Qualified Lawyers’ Transfer Scheme (QLTS) examinations.16 These are rigorous and effective tests. But we have no mechanism to compare the standards of the QLTS with the domestic route to qualification.

Therefore, we will replace the QLTS with the SQE. This means that all would-be solicitors will be assessed against a consistent standard. Most of the SQE will be available internationally, although the one-to-one role-plays will only be available in England and Wales, at least initially. We expect SQE preparatory courses to emerge in the major jurisdictions around the world, including North America.

We also recognize that it is not good, proportionate, or targeted regulation to reassess the skills and knowledge of individuals who have practiced safely for years as lawyers in other jurisdictions. Our regulation should focus on areas where there is a substantial difference in the knowledge or competences required for their home jurisdictions compared with those required for practice in England and Wales.

Thus, we are proposing, subject to the outcome of consultation, to recognize professional legal qualifications that are equivalent in standard and content. For a U.S. attorney, this may mean that while we would wish to continue to test knowledge of English law, we would not need to reassess legal skills. This opens the prospect of a simple test of legal knowledge, widely available online, that an attorney can take to be admitted as a solicitor. We would wish to work with state bar admission authorities to undertake the mapping needed to establish where jurisdictions’ requirements overlap with our own.

We hope that this liberal approach to international recognition will promote English and Welsh law around the world.

Next Steps

We are partway through the sourcing process for a single assessment supplier to develop and administer the SQE on our behalf. We expect to have appointed the supplier by spring 2018. Once appointed, the assessment supplier will review the proposed structure of the SQE and the draft Assessment Specification and conduct the program of development, testing, and piloting to finalize the design and content of the SQE.

Our target introduction date for the SQE is September 2020. But we will not introduce the SQE until we are confident that the assessment is valid, reliable, accurate, manageable, and affordable.

We believe that our new approach will give greater choice and freedom to candidates as to the path they take to qualify, while at the same time meeting our key aim of ensuring consistent, high standards of professional competence through centralized assessment. We believe that this will result in a more diverse profession that will provide better standards of service to the consumers of legal services.

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