It’s self-evident that solicitors should be competent and that they should be regulated to assure their competence. The job of regulating solicitors in England and Wales, including entry to the profession, falls to the Solicitors Regulation Authority (SRA). On 1 September 2021 a new system to qualify as a solicitor came into force. Under that system the SRA satisfies itself that an individual is competent enough to be admitted as a solicitor if they have passed the Solicitors Qualifying Examination (SQE). But is the SQE fit for the purpose of assuring competence?
It’s all about competence
All good educators know that the conventional way to test whether students have learnt something is to think up some learning outcomes and then design the learning and the assessment so that students can show they have achieved those outcomes. When it comes to qualifying as a solicitor in England and Wales the ‘learning outcomes’ are in the form of the Statement of Solicitor Competence (SSC) which sets out 18 competences, across four areas: ethics, professionalism and judgment; technical legal practice; working with other people; and managing themselves and their own work.
The SRA has made it clear that the SQE will be the gatekeeper to entry to the profession because it will be the sole means by which the SRA will establish that an individual is fit to be admitted:
‘Our Statement of Solicitor Competence sets out what solicitors need to be able to do to perform their role effectively, and which provides everyone with a clear indication of what they can expect from their solicitor. This is what the SQE assessments will be testing.’
If the SQE’s job is to check for competence, where does this leave work-based training? Under the old training contract regime, the training principal had to ensure that the trainee ‘has applied and developed the skills as set out in the Practice Skills Standards’. The Practice Skills Standards – as the SSC’s predecessor – contain lots of hands-on, competence-building stuff which can only be done during a well-rounded training contract.
The role of QWE is more modest, being ‘to develop some or all of the competences’. The Law Society recently published guidance on QWE, which included the statement:
‘Most candidates will not develop all the competencies, and employers and candidates should consider which competencies will best prepare the candidate for their future practice as a solicitor.
Best practice would be to get a range of experience across the four key areas wherever possible.’
Additionally, the SRA has made it clear that it will not advise whether an individual’s work counts as QWE: this is left to their supervising solicitor to determine. And, to avoid any doubt, the SRA states: ‘The solicitor confirming your qualifying work experience is not deciding whether you have met the prescribed competences for solicitors. SQE assesses whether meet our standards.’ [sic]
In SQE we trust
It’s clear then that the SRA is relying on SQE1 and SQE2 to test whether someone is competent to be admitted as a solicitor. So the key question is: Is the SQE fit for that purpose?
SQE1 uses 360 multiple-choice questions to assess functioning legal knowledge. Whether this is a good idea has been extensively discussed elsewhere and will not be considered further here.
When it comes to testing competences, the more obvious issue is with SQE2 which is essentially a snapshot skills test. SQE2 assesses six practical legal skills in five practice areas: client interview and attendance note/legal analysis; advocacy; case and matter analysis; legal research; legal writing; and legal drafting. These skills fall within the competences but they certainly don’t cover all of them. Although the SRA purports to map SQE2 against all the competences, it is unclear how SQE2 will test six of them:
A2 Maintain the level of competence and legal knowledge needed to practise effectively, taking into account changes in their role and/or practice context and developments in the law
A3 Work within the limits of their competence and the supervision which they need
B7 Plan, manage and progress legal cases and transactions
C3 Establish and maintain effective and professional relations with other people
D1 Initiate, plan, prioritise and manage work activities and projects to ensure that they are completed efficiently, on time and to an appropriate standard, both in relation to their own work and work that they lead or supervise
D2 Keep, use and maintain accurate, complete and clear records
The above competences appear to be matters which can only be developed and tested over time in QWE but, as it is not a requirement that QWE covers all the competences, it must be possible for people to be admitted to the profession who are not competent.
In many cases the shortcomings in the SQE’s design will not lead to non-competent solicitors because firms offering well-structured two-year training contracts will ensure their trainees are receiving a rounded experience tailored to the firm’s business needs. Issues are more likely to arise when someone obtained QWE in a variety of organisations without any overarching coordination of their training to become a solicitor. In that context it’s quite possible that not all the 18 competences can be demonstrated by the individual. Non-competence in some areas (e.g. B2 Undertake legal research) will be shown up by the SQE, but others would go undetected before admission (e.g. A3 Work within the limits of their competence and the supervision which they need).
The system the SQE replaces wasn’t perfect but there was also no evidence that it was broken, and indeed plenty of evidence that it consistently produced competent solicitors. In introducing the SQE, the SRA risks admitting individuals to the profession who have not demonstrated that they are competent to work in its ranks.
Dr Andrew Gilbert
The Open University Law School
 See, e.g., various contributions in The Law Teacher (2018) 52(4); http://lawteacher.ac.uk/wp-content/uploads/2020/04/Law_Subject_Associations_Submission_to_LSB.pdf; https://www.slsa.ac.uk/images/2020_summer/SQE_SLSA_Report_2020.pdf