Clinics and SQE – what next? Some conference notes about the new route to qualifying as a solicitor in England and Wales (mainly from a law clinic perspective)

On 5 June 2019 I attended an event at Coventry University entitled “Clinics and SQE – what next?

To the uninitiated, at least two questions flow from that title. What is SQE? What does it mean for clinics? There might be a further question for some who are properly new to all of this, namely: what is meant by clinics?

SQE stands for “Solicitors Qualifying Exam”. SQE is a big deal for any of our friends in England and Wales who are concerned with legal education. Two quickfire clarifications. 1) For ease I’ll just say “England” rather than “England and Wales” as shorthand from now on, but stay tuned for another Welsh-interest point. 2) Please note I use “concerned with legal education” broadly: naturally there are those who provide education, which might be thought of as my main interest, but of course there are also those who participate in legal education, and also those who want to benefit from educated individuals (i.e. employers, but also society more generally).

SQE 1 and SQE 2 will soon – it seems – be playing a “gatekeeper” role for access to the legal profession down south, albeit it will operate with the additional requirements of having a certain amount of eligible experience undertaking legal activity in a verifiable way, and also the requirements of probity expected of solicitors, namely to be an ethical and professionally aware soul (the “character and suitability requirements”). After an initial proposed roll out date of 2020, this has slipped back to 2021. Some are still sceptical about the SQE on its own merits, with various points relating to this being touched on below. The vibe I have been getting and continued to get on the day, however, was the SQE train is coming and it was a bit late to try to stop it outright. Anyway, more on all the machinations of the SQE below, including the question of why a Scot might be interested in all of this.

That quickly explains the SQE, but what about the “clinics” bit of the event title? To be clear, this is not some kind of medical dalliance. Clinics – or rather law clinics – are now pretty well-known in legal circles and I have blogged about them previously (see here, and other things tagged under “law clinics”). Basically, clinics are places where law students can: a) offer legal advice and/or representation (under supervision) to those in need who are unable to obtain such support by other means; and/or b) undertake activities that address access to justice issues more broadly, perhaps by community work (including public legal education).

Don’t just take my word for what clinics are about though. There are representative bodies that explain law clinics better than I have, and one of them – the Clinical Legal Education Organisation (CLEO) – had its AGM at Coventry on the day of the conference. I am a trustee of CLEO, and there was also a trustee meeting.

The trustee meeting and AGM provided two reasons for me to go to Coventry. Naturally, I don’t want to bore my blog followers with the fine detail of the governance of CLEO, but I will take the opportunity in this post to set out some of the discussions about my other reason for attending, namely to find out about the acronym that is gloriously monosyllabically rendered as the phonetic “squee” (which sounds like the kind of noise a child would emit whilst having lots of fun in an Enid Blyton-esque way, before drinking lashings of ginger beer).

Before doing that, I’ll explain what this might mean to a Scot, and indeed to this Scottish writer. A first point is that the University of Aberdeen – like a few other Scottish law schools – offers English law qualifications. Another point is that what happens in the larger jurisdiction of England might have an impact or at least an influence on the direction of legal education and training in Scotland. Don’t get me wrong, this is an issue that periodically arises in Scotland – with discussions being instigated either by the regulatory/professional body (2017), by politicians (2018), or as part of wider review of legal services triggered by government (the Roberton Review, 2018 – PDF here). It’s just that whenever the biggest jurisdiction in the UK does something this can have a ripple effect elsewhere, in terms of copying what is seen to work or being cautious over what does not. A further point is that what the (larger) clinic sector does in England is of more than passing interest to the (smaller) jurisdiction of Scotland, and if the clinic sector down south is moving and innovating, the question of whether Scotland should also innovate is almost entirely independent to the reason for England’s innovation.

Returning to the question I omitted from the above, what does it mean for clinics? A few things, and that was the central theme of the conference. Here comes the main thrust of the blog post accordingly, and what follows is a post in my occasional “data dump” style, presenting my notes in semi-processed form. If you’ve already got this far in this post, you are perhaps a bit interested and might be as well to read on. If you’re a bit doubtful though, be advised that a) this may not be a rip-roaring read for everyone, b) I probably won’t form any firm conclusions, and c) I might be horribly parsing or paraphrasing other people’s views here. Anyway, here goes, in roughly chronological order from the day. (Also available for those who want to supplement or replace my blog post with more bitesize chunks is my Twitter thread from the day, here).

Clinics and SQE – what happened?

The day itself began with the CLEO AGM, which featured a quick report about what CLEO had been up to during the year, its website, a discussion about what clinics might do in relation to the current climate challenge, and governance matters. The governance matters involved 1/3 of trustees stepping down in line with the CLEO constitution (including me), those wishing to be re-elected being re-elected (including me – phew), and new trustees being assumed. Then the first of the day’s panels began.

Panel 1 – SQE, Law Schools and the role of clinics in legal education

[Before setting out what was discussed, I will offer one point on the title of the panel. No criticism of the title is intended, I stress, which was absolutely fit for the purpose of the day, it is just that it might be worth noting that there is a healthy amount of literature on what role law clinics can play in legal education anyway, not least in the open access journal the International Journal of Clinical Legal Education. This post does not go into any of that (although I do touch on it in my 2014 article in The Law Teacher, and there has been more recent analysis of this in an article by Stephan van der Merwe in the Stellenbosch Law Review (“A Case Study in Advocating for Expanded Clinical Legal Education: The University of Stellenbosch Module” 2017 28(3) Stell LR 679-701)). Instead this post – much like the event – uses SQE as both the springboard and the setting for the discussion.]

We were welcomed by Stephen Hardy (Head of Coventry Law School). He began with the wistful observation that clinic had developed somewhat to what it was when he was younger, namely something that you did on a Wednesday afternoon if you were rubbish at sport. He introduced a panel of Julie Brannan (from the Solicitors Regulation Authority, aka the SRA), I. Stephanie Boyce (from The Law Society [of England and Wales], but speaking on the day as a consultant), and Professor Elaine Hall (Northumbria University). Stephen played chair for that session, and was ably supported on the day by Alan East (also Coventry) and Lucy Yeatman (Liverpool). It was also observed early in proceedings, I think by Stephen, that changes to the curriculum are not necessarily solely bad, and that they could properly be designed to change and challenge us.

The panel member to speak was Julie from the SRA. For Scottish readers, it is worth recalling that there is a regulatory and professional representation split in England: the SRA is in charge of regulating the profession, and the role of representing the profession falls on the Law Society. In Scotland the Law of Society of Scotland retains the regulatory role, whilst also representing the profession.

The SRA is pushing for route to the profession reforms in principle and is now seeking implementation in good time. Julie noted the new system envisages everyone who qualifies must have a degree or equivalent, then SQE 1 (knowledge) then SQE 2 (skills), then two years of qualifying work experience (QWE, gloriously phonetically rendered as “quee”, details of which can be found in the regulations on this page), and must also satisfy the character requirements. She stressed there was no particular order (so you could do SQE 1 after SQE 2, a point that was clarified in the Q&A) all that mattered was that students had all of those by the time they applied to get a practising certificate and on the roll of solicitors.

Why was this reform being brought in? The main reason, which was returned to a couple of times, was a hope to remove some of the barriers in the current system, in terms of cost and availability of training contracts. Regarding the cost, it was noted SQE might weigh in at £3000 – £4,500.

Another related point was the conversion rate of the present route to qualification, which involves the vocational qualification called the Legal Practice Course (the English equivalent to the Scottish postgraduate Diploma in Professional Legal Practice). Apparently where a candidate is financed through the LPC by a law firm, this brought a conversion to solicitor of 95%. When trying another route (such as support from the bank of mum and dad), the conversion rate was 70% or so. The gamble of doing the LPC without having a contract was raised.

What would the new qualification route mean for clinics? Julie noted working in a law clinic might be within the umbrella of what can contribute to qualifying work experience – i.e. under the supervision of a solicitor (that is to say a solicitor on the roll, not necessarily in practice). It was also noted that QWE could be built up in “no more than four organisations” – and a law clinic could included as an overarching single organisation (that is to say, you might also include within that law clinic allocation some placements led by the uni (i.e. you don’t use up another one of the four)).

The second speaker, Stephanie, mentioned that the Law Society agrees in principle with the SQE, but stressed she was speaking for herself not the Law Society. Mind you, she also mentioned a concern for the Law Society of England and Wales, namely that Welsh language resources for the assessment might not be available in good time, which is pretty important as there is a legal need for this to be the case. As someone with an interest in minority languages, this was more than a bit interesting to me – any remaining doubts about the SQE aside, it might be provision of materials in Welsh that slows the roll out down.

Elaine was the third speaker, and she noted that she remained of the view the SQE was not a good idea, and that she had not given up on the idea of stalling or perhaps even scrapping it. I am conscious I don’t want to put words into anyone’s mouth, so please count this as paraphrasing. Anyway, as part of her presentation, she took some figures from the SRA website (a website that she noted was lovely and thanked the SRA for that), and basically noted that with ~192,000 solicitors on the roll, of which ~147,000 are practising, where were all the current law students going to fit into this irrespective of the SQE? Based on figures from the Law Society, 2017/18 saw 18,850 UK students enrolled on undergraduate courses, and then there are roughly 6,000-7,000 new members coming on to the roll in a year, so there might well be fewer law-type jobs than that. (Fewer than half of law graduates will have even a law-related job, never mind be a barrister or solicitor.)

Returning to the SQE, she then went all Tolkien as a means to critique the cult around the new expected journey: one exam to rule them all, one exam to find them, one exam to bring them all, and in the darkness bind them. (It works better when “ring” and “bring” rhyme and scan, but kudos to Elaine as I geekily enjoyed this.) She also wondered whether all the problems with the present system that were cited really were problems (in passing noting that she had not ruled out a few strategic Freedom of Information requests to interrogate certain matters a bit more), and wondered if we were spending lots of time and money to replace something that is basically working.

That broadside towards SQE aside, what about SQE and law clinics? In her view, [qualifying] work experience in clinics cannot just be aimed towards ticking SQE boxes, clinical work should also be about making people better, more self-aware, more ethical, and so on. That is to say, clinic experience should be a more holistic affair, and not ousted by technical QWE requirements.

If they can align though, all well and good, but… how much in the way of clinical experience could be given over a three or indeed four year degree programme? Taking two years’ experience as 3,248 hours (although Julie stressed this number was not regulated by SRA – this being the two years FTE equivalent from the UK Government, and the SRA says they won’t count hours), how much could be done? Taking her amazing, lovely uni with its developed clinic and also including potential summer work and everything else students might do for a clinic in their free time, Elaine reckoned students could still only realistically get to 50% of the hours. Someone would still need, for example, a handy uncle with a handy law firm to top up the hours. She also feared that promising loads of hours could open unis/clinics up to advertising problems, and the last thing she wanted was for the ASA to be after her for promising more hours than might be delivered. Julie did respond by noting the hours requirement was permissive rather than directory, and then the discussion opened up into a Q&A discussion.

One big question was “How will this system actually differ?” It was speculated that people coming to the legal profession from other professions might do things more quickly than they would under the current system.

On what the system will mean for supervisors (and clinicians), it was asked whether barristers could sign off, and the answer was “no”. Why? Because the SRA cannot regulate barristers, so barristers making any kind of dishonest declaration could not be chased by the SRA.

What does a solicitor need to do (in relation to QWE)? A solicitor needs to make an honest declaration, and not necessarily make a statement about reaching a certain competency. The supervising solicitor simply says they have had the OPPORTUNITY to reach those standards, and those standards would be finally signed off by SQE 2.

The solicitors in the room asked for further details: if it is not an exact hours issues, and not a competency point, when will a signing off solicitor be pulled up by the regulator? The example given was a solicitor saying (for example) a student has done 3 months instead of 1.

What else might allow for QWE to be topped up? a) A formal training contract for a year. b) Acting as a paralegal. c) Involvement with suitable unregulated services.

This being so, the point that was returned to is that there will still only be 6,000 or so jobs for people navigating the system, notwithstanding these changes. Another point was raised about whether Magic Circle [big London] firms would even be interested in what is happening at Clinic, or indeed QWE as a whole: would they not just put people through their own training regardless?

Returning to clinics as a whole, one delegate noted SQE doesn’t harm what clinics are or should be doing, so whilst people may still have wider reservations Clinic still can have a role. Another delegate later in the day stressed SQE would not change her clinic’s focus on access to justice. That being said, the potential danger of a uni and its clinic(s) coming a cropper in terms of marketing was returned to, and there was a point made about the huge burden of record keeping that could/would emerge. One point that would be relevant for many clinics though was that SQE1’s knowledge requirements did not cover some key clinic subjects: for example, there was no social security law or family law in SQE1 (with “company and commercial” being the only topic that is a non-reserved solicitor area that SQE1 covers). This might have the danger of skewing clinic activities in some cases.

In terms of other comments made as this panel concluded, one person rather pessimistically noted they felt the new route was but a “paint job with a new name” and was not actually about increasing access to the profession, with it also being noted that the whole SQE innovation brings together the worst stuff of the LPC and/or the Law Society finals. That being the case, another noted the SQE was never going to be able to solve everything, so maybe people were being a bit too downbeat. A final point to make here is that this SQE system is but the starting point, and it might tweaked in future.

That brought the morning session to a close. I did sneak a quick question of Julie from the SRA over lunch though, which was probably only relevant to me in the room: “could QWE be undertaken in Scotland?” Answer, yes, but the person signing off on it would need to be regulated by the SRA (and naturally the QWE undertaken outwith England would be less likely to be purely English law, so some suitable discussions about differences between (say) Scottish and English positions after a case would maybe be needed to make such QWE worthwhile).

Panel 2 – Social Justice and SQE

The afternoon featured another panel discussion, with the clinicians outnumbering the SQE-ers on this one. The one SQE-er, so to speak, in this case was not so much someone who had been sent out to bat for SQE on the day, but rather someone who had been involved with its planning yet was not involved in its implementation. This was Crispin Passmore, a consultant who knows the legal market well and who previously ran a successful law centre in Coventry, albeit he is not a lawyer himself. Katherine King (Central England Law Centre), Stephanie Jones (University of Central Lancashire) and Elizabeth Fisher-Frank (Essex Law Clinic) brought current pro bono perspectives to bear on this discussion. They spoke variously about:

  • outreach work in particularly deprived areas (including areas where the clients could not even afford to get to a university campus);
  • the potential for a commercial law clinic (and how, despite potential criticisms that this could be a distraction from “at the coalface” access to justice activities, it in fact perpetuates access to justice by sustaining the economy at a local level, plus also providing opportunities to three student interns with 10-month positions, who in turn provided client continuity over their period of office); and
  • placement models (linking Coventry with the Central England Law Centre, with a connected course featuring a reflective diary).

With those situations in mind, one of my favourite observations of the day was made: clinics help students to think like clients rather than like lawyers. That is to say, when someone presents with a situation that boils down to “I have X legal problem”, DON’T just tell them what the law says about X, rather tell them what they need to do.

What about funding for clinics? In the brave new SQE world, there may be a need to come up with further justifications for a clinic’s existence. Sure, budgets might get squeezed but teaching still needs done, and clinics can be part of that. That said, returning to a theme from earlier in the day, would students be driven to complete clinic tasks that are covered in the SQE2 test, with pressure from (for example) the market on unis to facilitate that?

Once again, a response to this proposed incarnation was this is still a pilot phase, so it could still be possible to make a case to tweak this in the near future. It was also noted that the whole reserved activities point is a tricky and almost a political one anyway, with the history of reserved activities being a bit arbitrary, so perhaps there is a danger of conflating issues here.

Returning to the overall clinic point, how does the clinic sector convince people “we need more not less” in terms of clinic? Can the views of employers play a role here? Can the importance of clinics be stressed to uni administrators?

Then came a pretty interesting question, namely: “would clinics end up competing against each other?” I suppose this might happen when QWE in one clinic ticks boxes and seems sexier than QWE in another, but this can quickly be countered by the fact this is probably unlikely to be so much of an issue in and of itself where demand outstrips supply, and that does seem to be the case in (parts of) England at the moment.

There was also brief discussion along the lines of whether there might be scope to offer commercial advice to people who might even pay a bit for that, and then feeding back proceeds into social welfare law work. At least, I think that was the discussion, I confess I was distracted as I was trying to frame a selfish question in a way that would interest the (otherwise non-Scottish) audience.

My starting point was of someone who was not directly affected by SQE in relation to Scots law teaching, but I asked the panel to imagine for a moment that Scotland is to embark on its own SQE-type journey. What should the Clinic sector in Scotland do in such an exercise? This was particularly aimed at Crispin, who I think it was fair to say was not minded to fight yesterday’s war in relation to what SQE entails in England. His tip for Scottish clinics in such a notional exercise was to engage, and to engage now (in the context of the Roberton review), bring evidence in, and bring the benefits of clinic (for all) to the fore. He also noted that consultation does lead to changes, both in terms of people making sensible suggestions that lead proposals to be changed, and also because a duff consultation can lead to a judicial review.

Anyway, other than a quick discussion about the confidentiality of clinic work in the context of QWE (which people thought could be managed) plus some later workshopping about clinics and QWE (which is best explained by way of the slides included in my aforementioned Twitter thread, here), that was the end of the main SQE chat on the day. There was then some further discussion about what clinics can do in relation to climate challenges, with one delegate noting the possibility of helping community groups who try to bring in local food solutions or recycle old furniture, some recollections of a discussion at the 2017 IJCLE conference in Northumbria about students taking action in relation to a local emitter (see this tweet buried in a mega-thread here), and me making a quick shout out to the SULU initiative in terms of helping local communities overcome land-based barriers to sustainable activities, and wondering if there might be an equivalent down south relating to the Localism Act 2011 and its assets of community value.

Conclusion

And then proceedings for the day finished, much like this blog post is about to finish. We did also have a CLEO trustees’ meeting, but as promised I won’t bore you with that.

Well done if you have made it to the end of this post, and (less flippantly) well done to Coventry and the team at CLEO for putting on such a useful event. I certainly left the day better informed, and in turn I hope this blog post might just play a part in leaving you better informed. If you have any questions or thoughts on any of this though, please comment below or get in touch with me in some other way.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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