Interview: Dr Jess Guth on the SQE
Q&A with Dr Jess Guth on the Solicitors Qualifying Exam (SQE)
YLAL’s Aneela Samrai sat down with Dr Jess Guth for a Q&A on all things SQE. Dr Guth is a Legal Academic with a particular interest in legal education. Until recently she was a Reader in Law at Leeds Beckett University and prior to that was Head of Law at the University of Bradford. Dr Guth is an experienced academic and has developed and taught a variety of courses at undergraduate and postgraduate level. She has published widely on legal education, including the SQE, and in feminist and queer approaches to law and legal study. She is a former Chair of the Association of Law Teachers and the Deputy Editor of the Law Teacher: The International Journal of Legal Education. She has also been a member of the Socio-Legal Studies Association Executive Committee and the Society of Legal Scholars’ (SLS) Legal Education Sub-Committee.
What is the SQE?
I’ve been trying to explain it to people in the simplest possible terms because I still think there is loads of confusion about what it actually is. Essentially, it is simply a centralised assessment that everybody in the future who wants to qualify as a solicitor will have to pass. It replaces the way that the SRA has thought about ensuring fitness to practice. Up until the SQE they have accredited pathways and if you follow that pathway you qualify, whereas they’ve now switched to much more outcomes focussed regulation. All they’re interested in is whether somebody at that point in time is competent to be a solicitor, their opinion is that the SQE will give them the answer to this question.
Why has the SQE been introduced, and what was wrong with the LPC/Training Contract route?
I think that this is actually a controversial issue because all of the reasons that the SRA said at the beginning were the drivers of the SQE, I’m not really sure that they hold true. There were three key drivers.
- One of the drivers was this idea that the SQE would provide a more flexible and significantly cheaper route to qualification. One of the big things at the beginning of the process was that they pointed out, rightly I think, that qualifying as a solicitor is actually really expensive. And that because it is so expensive, it stops really good, competent and passionate people from being able to qualify and follow that route – it’s just not financially viable for quite a lot of people. That might be particularly important for YLAL’s membership as well because I think it’s often a problem for people with an interest in legal aid work that come from the sort of backgrounds that make it really difficult to qualify in law. There’s also something around the notion of taking on debt, and if you come from a wealthy background then taking on a student loan and perhaps taking on another loan to do the LPC, then working for relatively low income through a training contract is perhaps possible. If you don’t have anything else to prop you up, anything to draw from, then that’s going to be really difficult.
- The second driver arguably was around quality. The SRA for a long time expressed concerns that there was a problem at LPC level and that perhaps too many people were passing the LPC – that there was something going on and people who were passing perhaps shouldn’t be and the SRA weren’t very happy with the LPC. All the academic research I’ve seen on that doesn’t necessarily bear that out. So the fact that for example different institutions had different sorts of pass rates might actually not be anything to do with quality at all.
- The other driver is that a lot of regulation has actually moved away from the pathway model to something that is just more outcomes focussed. I’m not sure, but it might be a cheaper way for the SRA to do things, because they have to do far less work in accrediting courses – they set a centralised examination that people pay for, rather than having to put any kind of resource behind making sure that qualifying law degrees are actually qualifying law degrees.
Do you think that the new SQE route to qualifying will actually be any cheaper?
Not significantly. I’ve just been looking at some of the figures to try and do the maths. Together with one of my colleagues, Dr Kathryn Dutton, at York St John University, I published a piece on widening participation. In that piece we said that is seems unlikely that it’s going to be significantly cheaper. Now that we’ve got some early indication of fees, I think we were right in our guess. So we know that the minimum cost of the SQE is going to be just under £4,000, because that is the minimum that you’re going to have to pay to sit the examinations. That is without taking into account really obvious things like having to travel to the venue and we’re yet to see where all the venues are going to be. So that could add a significant cost in terms of travel, possibly overnight accommodation, all those kind of things for people. And that’s if you don’t do any prep course at all.
If you then look at the cost of prep courses, as far as I can see, the cheapest preparation course that would cover both SQE1 and SQE2 is about £3,000, and that would be the absolute cheapest way of doing it but student finance type loans are not available for these prep courses. So that would take you to around £7000. There are LPCs that are about the same price or certainly are when alimni discounts etc are taking into account. Many LPCs now are LLM type programmes and are often done by graduates of that same institution and they often get quite a big graduate discount of 25% or even more in some cases. Often the cost of the LPC that you see on a website isn’t the cost that people pay a lot of the time, it’s actually lower. So on that basis, I’m not sure the difference is massive.
I think the really important thing is that you won’t be able to get any kind of student finance for the basic prep courses. So at the minute, if you do an LPC that has an LLM attached to it, then you’re eligible for student finance, which is probably still a better way to take out a loan than a commercial bank type scenario. There are a number of institutions that are developing a number of LLM level SQE preparation courses. So I know ULaw have one, BPP have one, and I’ve heard rumblings from other institutions talking about that being the model they’re going to use, because that’s how students can access loans to be able to afford it. But that of course means that they are going to be priced at LLM level, so for ULaw, depending on which site somebody would choose, they could be up to £17,500. I think their cheapest one is about £12,000 to £13,000. That’s then the same amount they charge for the LPC, without the cost of the SQE examinations. So it can be done more cheaply, but most of the time it actually looks like it will be more expensive.
How will the SQE prep courses differ from the LPC?
That’s a really good question. I don’t think we’ll know until a significant amount of institutions get a little bit less guarded about exactly what they’re doing. Because a lot of them are rolling it into an LLM, they also have to meet the academic standards of an LLM. So I think those types of courses will look, in a way, quite familiar to anybody who knows the LPC because it has to meet the rigorous academic standards of that level of qualification.
I think what will be interesting to see is whether they actually really prepare people for the SQE because its seems to me that for SQE1, actually what you need is something that is really intense, really quite short but sharp, and is actually about cramming because that’s the kind of skills that the SQE1 tests. So I would imagine that for many people, the kind of courses that are most successful in preparing you for the SQE are things that mirror really intense preparation courses that you see for the US Bar for example. So probably fairly short in duration, and that essentially are really just cramming in knowledge and practising multiple choice type questions. There are some offers, I think Barbri offer short online course, and ULaw do as well, that are around £500 per set, almost like revision type stuff, that are really just about cramming knowledge. I wouldn’t be surprised if they proved to be more popular for people that want to get the SQE out of the way, but that’s guess work at this point.
Do you think candidates can realistically pass the SQE without doing any prep courses?
I think it really depends on the candidates. My guess is no. I think the majority of people will have to do a prep course. I think there are always people who are really good at studying on their own who could do it. But given that you’ve got to pay a substantial amount of money to just sit the exam, it’s a bit of a risk to do that so my guess is that most people will go for something. My concern in terms of the widening participation stuff is that people won’t get the advice that they need, and that will just make it even harder. So I can see that lots of people might be attracted to the idea of doing an LLM because of the way that the finance works, but actually that won’t necessarily help prepare them.
Alternatively, you might have some people where you’d think an LLM would be really good because it gives other areas of experience as well and not just the SQE but they’re just drawn to something that just gets the SQE over and done with as quickly as possible because they think that’s going to get them into practice as quickly as possible. So I think the advice that you’d give really depends on the candidates and what they want to do, and what they’ve done before. So I don’t think a non-law graduate would be able to pass the SQE without a prep course.
In terms of what the prep courses cover, how does that work for our membership? So for people who are interested in social welfare law, I’ve noticed there doesn’t seem to be any on the SQE.
I think that the SQE is a disaster for your membership because it paints a particular picture of what solicitors do for a start. So a lot of people who might think they want to come into the profession but aren’t really quite sure, if they’re looking at the SQE as a benchmark for “are these things I’m interested in?” a lot of them might go “oh god hell no its all business and commercial practice and that’s pretty much it.” So if you have a real interest in legal aid work and social welfare law and you look at the SQE, you may go “that’s the wrong route for me.” I think there is a risk that the SQE changes how we think about what solicitors do and therefore people will select in and select out on that basis or be given advice on that basis. So I think that’s one danger.
Another danger is that people won’t know anything about social welfare law. I think it’s hard enough now because there are a few LPCs that actually do that kind of stuff really well. It’s already been pushed out of degree courses. I think that lack of education and training around the areas that legal aid covers, social welfare law particularly but also things like family law and employment law that are perhaps also relevant to the kind of stuff that you do, are just being pushed to one side. So a lot of SQE prep courses that are focussed solely on getting people through the exam won’t cover any of that. Some of the LLM courses I think will be designed a little bit more broadly, and with a broader practice base in mind. I had a really quick look at the a couple of examples, and on their websites there are some options like asylum and immigration law. Somebody could choose to do family law, for example, but it’s still very corporate dominated though. So again people will need really clear advice about what they could do and where they could do it. If somebody wants to do social welfare law then they probably need to look at something like an LLM, but be really clear and get guarantees from the institution that, for example, a particular elective module will run because they might all be listed on the website but if there are only a handful of students that want to do it an institution might decide it’s not viable. If that’s the only reason you’re there, that’s hugely problematic.
Building on what we’ve already discussed, what impact do you think the SQE is going to have on social mobility and racial diversity within the legal aid sector?
I’m trying not to be too pessimistic as things are depressing enough at the minute with the pandemic. But I think it could be a real disaster. I don’t want to be too dramatic but I think there is already a really big gap when you look at institutions where people do their degrees, which often links back to where people did their A-levels, and that then has a massive knock on effect in terms of the opportunities that people have to get into legal practice. I know there’s sort of a move to get away from looking at A-levels as proxies, but lots of firms still do that when recruiting for training contracts. One of the things the SRA said at the beginning was that the SQE would take this away and that wouldn’t happen anymore but I think they’re wrong in that. If their logic was right then people would ignore A-levels and look at LPC results and somebody who has poor A-levels but very good LPC would walk into a job. But that’s not what happens. This whole inbuilt structural inequality that I’m sure we could spend hours talking about, the SQE just doesn’t address it and I think makes worse.
City firms will continue to recruit from the same institutions they always recruit, they’ll go to Oxbridge and the Russell Group. But that’s kind of it. Everybody else will go, “how does this work?” and “what’s the SQE?” For small firms, and legal aid firms in particular, there’s such a lack of knowledge about the SQE and that this means they could be recruiting solicitors who have never studied any of the areas of law that they’re going to have to deal with, potentially have never really studied law, and certainly have never had their legal research skills tested in any way that would give you confidence that they could develop the skills and knowledge in new areas. I think that means that increasingly people will go back to relying on proxies of merit that they understand. People who are running small firms and are doing recruitment at that level, they understand A-levels. A solid qualification they know what to do with. That exacerbates all of the inequalities that are inherent in the system.
How would the SQE be graded? Is it a pass/fail or would you get a distinction/merit?
It’s a pass/fail essentially. But they keep saying things like they will release the results, and potentially there could be a ranking. My statistic friends assure me that this is correct and accurate and normal, but that there isn’t one set pass/fail rate in the SQE. So it’s not like you have to get 70% to pass. The pass/fail rate will fluctuate in the SQE1 depending on the exact makeup o
f the exam and the cohort. There’s an algorithm essentially, that works out the overall difficulty of the questions for each exam sit, and the percentage of people who pass. One year you might have a cohort where they pass with 60%, another year it might be something else. Apparently that’s normal, I don’t understand how that works, but I think that’s just me.
They also say they’re going to release information about pass rates linked to educational trajectory. So when people sign up to do the SQE they will have to fill in a form that says where they did their first degree, what they did that first degree in, what preparation course they’ve done, and apparently that data will be released because it will allow potential candidates to work out what pathway they want to take and what preparation course they might want to do. I don’t think that’s going to work because they’re relying on candidates to give them the information. If somebody just says they did a prep course at ULaw they won’t necessarily know which one, they won’t know if that’s the LLM or one of the others. They will have to collect quite detailed data, but they’re not controlling in that data for background, for other experience, for any additional support that candidates might have had. So I think that data is actually going to fairly meaningless but they’re going to probably attach a lot of meaning to it, which I think will further exacerbate the built in discrimination that’s in the system.
Yes definitely and we saw last summer how algorithms can be discriminatory with the A-level results as well.
Yes and initially there was talk that the SQE was going to address these kind of things that are already built in the system. I actually think the SQE makes them worse and it doesn’t tackle them. We saw an example of that in the SQE1 pilot, where we had a legal research exercise, and candidates from Black and ethnic minority groups did significantly worse on that exercise than their white counterparts. Instead of working through what the problem was, what the cause was, why that was happening – they just said there might be a problem with this so we’re not going to have that research element on SQE1, we’re going to remove it. In a sense, rather than tackling the problem and really looking at what was going on there, they just parked it.
Given that a research exercise now appears in SQE2, the problem hasn’t gone away and I’m not sure they have really resolved what’s going on there. I don’t know where the discrimination was, whether it was a problem with the scenario, but I suspect that it is something that is structural that would take really detailed and careful analysis about the cohort that took the pilot. But it’s a little bit typical of the SRA to say there’s a problem here and we’re just going to solve it by just removing that element, even though at some point people will be tested on legal research. If there is that discrepancy then it needs investigating.
We’ve talked about the response of the legal education providers who are currently delivering LPCs. What do you think the response from Law Schools delivering undergraduate degrees will be? Do you think they’ll change the way they are structured?
Yes and we are already seeing it. There are some institutions who are doing absolutely nothing. Again, this speaks to the inequalities that are inherent in the system. The institutions who are not doing anything tend to be what we think of as the elite institutions. Really all they’re doing is adding a few words to their marketing material, perhaps tweaking things a little bit by outlining how their programme gives students the skills to then continue on and be successful but doesn’t prepare people. Then you’ve got a whole number of institutions at the non-elite end who are really trying to sell themselves as providing a degree that will help get you through the SQE. We’ve seen a number of things happening there.
One is just swapping assessment types. So where student might have had an essay, or something more creative like a poster, they are swapping them out for multiple choice exams. The rationale is that this gets students used to sitting multiple choice exams so when they get to the SQE they will be better prepared. It removes a whole load of skills that employers really value . I think there is a real risk, lots of employers already think of degrees from elite institutions as better than degrees from non-elite institutions. I’m not sure that that’s true at this point but I think that this over the top shift to employability and SQE type skills means that gap will widen. So people will see degrees from good institutions as good academic degrees that give people the skills that you need like critical thinking and being able to analyse things. Then they will see people with degrees from non-elite institutions, particularly those that say they’re really vocationally focussed, as basically just trained little drones that can’t really think for themselves, but can probably negotiate the SQE.
I guess it will be difficult for people who don’t want to be solicitors, for example people that want to be barristers or work in a different sector, who will be on a course that is quite focussed towards the solicitor route of qualifying.
Yes exactly. The percentages keep changing on what I see but some people say 40% of people actually go into the legal profession and some say it’s even lower than that. We know it is less than half. There are some law schools who are putting quite a lot of effort into preparing all of their students for something that fewer than 50% actually even want to do, which seems slightly odd to me. It would be fine, in a way, if they weren’t at the same time neglecting the really good things about law degrees. I think law graduates are often really good at assimilating lots of information very quickly, they’re really good at analysis and they’re really good at thinking problems through logically. The more we focus on just the multiple choice stuff, the more we neglect critical thinking stuff and actually also some of the creativity. I know we might not obviously think about lawyers as being creative but actually we really are. It’s that problem solving type of creativity which is sort of disappearing.
When I was the head of the law school at the University of Bradford the students who came to that law school were predominantly from the same postcode the law school was located in so very local. About 80% of my students were from a Pakistani background, usually the first in their family to go to university, and very rarely did they have any connections to law. What they really wanted was to change the world, not necessarily in some big grand way but to change their world and make a difference in their little corner of the world. When I look at those kinds of law schools and also the schools that those students came from and then think about the careers advice that they will get, they will almost certainly be told to look for a degree that will prepare them for the solicitors profession. So they will be channelled into the SQE or vocationally driven degrees, and actually I think doing those degrees will decrease their chances rather than increase their chances of getting into the profession.
Yes, that’s really depressing when you think about the fact that this was meant to try and improve diversity, and it’s just not going to.
The SQE is not the answer. I think that the positive spin on that, this is as positive as I can get on this, is that I’m not the only one. There ar
e a group of academics who a really concerned about the potential impact that the SQE. We have been working, and we are continuing to work on trying to shape the next review of legal education and training. These reviews come round, and there will be another one, so hopefully we can share that conversation.
One of the problems was that all of the academic associations on the SQE did a lot of complaining and a lot of “this isn’t going to work,” “we don’t like it” and pointing out the reasons why. What we were less good at, I think, was giving an alternative. Essentially we didn’t give the SRA a way out, a better way of doing it. I think the Association of Law Teachers and the other associations, we’ve learnt those lessons, and we might be a little more proactive in terms of thinking about the SQE not working, and if we’re right about that then we need a rethink and we need to do things differently. We’re clearly not going to go back to a time where the SRA regulates pathways and degrees, but there’s got to be a better way of doing centralised assessments of some kind. So we will keep working on that. We will also try and keep working with our membership to make sure that our membership fully understands the SQE and its implications and I would really like to do some more work with schools.
Rather than doing SQE type prep, I think law schools that are not at the elite end should actually be focussing on things like teaching social welfare law. Both academically but also a little bit more practically than we have in the past because those are the kind of things that might help our graduates. They are going have to do the SQE anyway, they are going to have to cram their head full of business law and practice and dispute resolutions anyway. If they can do that and pass the SQE well and show that on their degree they studied social welfare law and other law high street firms practice then that actually puts them in a strong position. That helps both them and also firms. I remember one round table where there were a number of small firms present and they were like “who is going to teach our trainees family law?” We were like “under the SQE, well, probably nobody because it is not on the SQE.”
I guess as well that one of the driving forces was to try an improve the quality of solicitors across the board, but that’s not going to be the case in areas of law that our membership practice in most likely.
It’s also really interesting because my understanding was that most of the complaints that are made against solicitors are not about subject knowledge. Most complaints are made about things most people always complain about like not being called back quickly enough and lack of communication. They tend to be about client care skills rather than subject knowledge. I’m not sure that’s something that an SQE prep course or exam can address. Apparently, the only area where there was some concern about actual knowledge of the law, was immigration law and I think that was in relation to barristers. The SQE definitely doesn’t address that because there is no immigration law anywhere near it.
So for two candidates who have both routes available to them currently, the LPC/Training contract route and the SQE, what would you advise them to do and consider when making that decision?
So right now for 2021, I would say LPC. There’s a long, long, long transition period. So anyone who starts a law degree now has the option, in theory, of going the old route. I think there’s something attractive about the old route that people know. I also think that smaller firms understand that route better and might be more comfortable bringing in somebody who has gone through that process rather than the SQE. The problem with that is that city firms have already gone on record saying that they don’t want to run two systems of qualification in parallel. Therefore, in 2022, magic circle firms will probably require everybody to have the SQE.
You might think that doesn’t have anything to do with YLAL’s members but I think that it will have a knock on effect because city firms recruit a lot of trainees. Universities are not going to continue to run the LPC if the numbers are really small. In fact, some might decide early on that they are not going to run SQE prep courses and LPCs in parallel. So whilst the LPC route might in theory stay open, in practice it might not. It might be that far fewer providers offer the LPC and if there are far fewer providers chances are they will hike the cost. There might not be a choice – that’s my concern. If there is a choice, then that depends on the individual candidates.
I think there are some people who have got really good brains for multiple choice questions and also some people who have got significant legal work experience that they could get signed off as qualified work experience. Obviously, if they are in that position then it makes no sense to do the LPC and then a training contract because they might already have the two years that they can get signed off. In which case, they are already quite close to qualification. I think it then depends on individual circumstances. But I think given the position of city firms and the number of trainees they take compared to the overall number of trainees in the system, I’d be surprised if the LPC survives as long in the transition period as the SRA thinks it will.
What are your thoughts on candidates still doing the LLB law degree or the GDL, because you could do any degree now. What would your thoughts be on that, or your advice?
Again I think this is really difficult. To me, a law degree can be absolutely amazing in terms of the intellectual journey. It can be really inspiring, interesting and intellectually challenging. It can really push you out of your comfort zone. It can make you think of the world in a completely different way. That is clearly the academic coming out in me. It can do all of those things in different ways for different types of students who come through the door. If that is what law degrees are, I will always think that law degrees are worth doing. I have never seen a law degree as something that is preparation for practice. I have always seen a law degree as preparation for changing the world, however you want to change the world.
My concern is that we are moving more and more towards law degrees that are really vocationally focussed and that places a huge amount of emphasis on all sorts of employability skills. The SQE just exacerbates that and makes it works. It has this real potential to turn law degrees into something that isn’t really that exciting, that is not that inspirational and that is in a way quite functional. So to me, there is a real difference between learning about law and learning law. I try and instil that in my students. We should be learning about law. We should be learning about what it means, what it could be and how it could transform our lives. We shouldn’t get too caught up in learning legal rules and how to apply them to scenarios because if you just do that then you lose the creativity and the thinking. If my vision of law degrees holds true, then those are the kind of law degrees that I would always say people should do. The other vision of the law degree, I would say don’t go anywhere near it. Because you’re better off studying history, politics or philosophy. Something where you would still have a little bit of freedom to play with ideas.
I think this skills-focused, employability skills in particular, agenda is everywhere. That is happening in history and philosoph
y too. But I think because there has always been this slightly uneasy relationship between the academic and the professional in law, that’s just really exacerbated. If you want to change the world, you need to look at the law degree you are going to study quite carefully. I still wish I did a history degree!