Common entrance exams and the SQE: the wrong story

by Paul Maharg on 20/10/2017

The SQE is the Solicitors Qualifying Exam in England and Wales.  It’s an example of a common entrance examination, something a number of legal education regulators are interested in, or already practising.  I was discussing it last night in downtown Toronto, at Osgoode Professional Development, in the context of legal education generally, asking nine questions of the SQE and giving some possible answers.  It’s a fascinating topic because it gets to the heart of so many educational issues, not just in professional legal education, and not just in legal education, and I’ll explore some of them here.

Any discussion of assessment always needs to go beyond itself, for as we know assessment drives curriculum development, teaching, learning and much else.  So, for example, will law degrees in England and Wales be affected by SQE?  After all, SQE applies to professional education, nothing to do with the undergraduate degree, surely?  But remember – the LPC doesn’t feature in the new, post-2020 regime.  And the traineeship has now morphed into an as yet unspecified period of ‘qualifying legal work experience’ where (though it’s early days yet in the development of the new regime) there is nothing on how standards of workplace learning will be enhanced and assured within the qualifying work experience.  For those schools who feel that there is something to be gained by altering their curricula to fold in SQE outcomes, maybe also altering their assessment regimes so as to give students practice on them, then yes, SQE will affect law degrees (Richard Moorhead has a fine blogpost on this).  And if curriculum designers mix in periods of qualifying work experience, then they will change even more.

The SQE also goes to the heart of the regulatory relationship.  In LETR Report, we argued not for a common entry examination but for ‘regulators to work with their communities to develop shared standards’.  We advocated that ‘longer-term development on setting sector-wide outcomes and standards should also be considered as part of a move to a more harmonised LSET system’ (Report, 4.144).  Note the language – a harmonised education system, achieved by the regulator through helping to build community and community standards, which would strengthen the system of legal services education and training (LSET).  To judge from the discord and lack of support in the consultation responses to SQE, and from the effective abolition of an education and training system (and its replacement with a series of assessments), we are ever further away from that.

And yet it’s not that difficult to achieve what we asked for. The next paragraph sets out some examples of change. We wanted ‘more robust and more creative approaches to assessment’.  Legal values were to be assessed ‘pervasively’.  Legal writing and critical thinking to be ‘assessed discretely at the academic stage (or its equivalent)’. Client communication skills ‘assessed more realistically’.  We asked for ‘greater integration of classroom and workplace learning’ to ‘increase the reliability and practice validity of the assessment of professional skills’.  LETR avoided neither the issues of assessment of professional legal education nor the duties of regulators to assure competence by assessment.  But it did set them within the context of cultures of learning and the discourse of dialogue and community.  In the new world of SQE, such cultures are forced to the margins: hegemonic assessment is the one ring that rules us all now.

As I pointed out last night, the SRA is leaning heavily on the QLTS for its model of SQE assessment.  But the two situations and their contexts are entirely different.  The QLTS replaced a defective and discredited Qualifying Lawyers Transfer Test that did little to assure anyone of incoming lawyers’ competence in either knowledge or skill.  In a specific, tightly-constrained space where assurance of competency was paramount in the public interest, the QLTS worked well, and subsequent publications by Eileen Fry, Richard Wakeford and Jenny Crewe (eg here) prove the method’s success.  QLTS was in part derived from the early work that we carried out on Standardised or Simulated Clients at Strathclyde back in 2005.  Our correlative study was published in the Clinical Law Review, and I’ve been blogging about the method on this blog since then, and also over at the Simulated Client Initiative.  Each of the 12 or so global initiatives there has shown it is a powerful tool for learning, as well as an assessment tool.  The SC approach also, as I’ve pointed out on many occasions, challenges:

  1. Curriculum methods
  2. Ethics of the client encounter
  3. The cognitive poverty of conventional law school assessment
  4. Law school as a self-regarding, monolithic construct
  5. Law school categories of employment
  6. The curricular isolation of clinic within law schools
  7. Hollowed-out skills rhetoric
  8. Conventional forms of regulation by regulatory bodies
  9. The role of regulator, as encourager of innovation & radical reform
  10. Disciplinary boundaries – what about a SC Unit that’s interdisciplinary?
  11. Local jurisdictional practices: how might such a project work globally?

But the SRA has learned the wrong lessons from the approach, seeing it only as a method of summative assessment, not as a learning tool.[1]  In part they do so because they are not part of a community of educators.  That ‘shared space’ we advocated in LETR would have been crucial to their development as educators, in the same way that communities are essential to the development of every educator.

Shared space is essential to good design, and not just in legal education.  I’ve quoted Hans Monderman before – you can read about him here and I’ve blogged here.[2]He was an early hero of mine when I was involved in the 1980s in cycling groups in Glasgow and Edinburgh – his work on the urban design of roads was inspirational – treating all road users as responsible, imaginative, human, and holding that the environment is a stronger influence on behaviour than formal rules.  As he said once of urban street signage (quoted here), ‘All those signs are saying to cars, “this is your space, and we have organised your behaviour so that as long as you behave this way, nothing can happen to you”.  That is the wrong story’.  It was the wrong story in the design and regulation of urban environments, and it remains the wrong story in the design and regulation of legal education.

This is the third time I’ve presented on the SQE.  As always, I’m most grateful for seminar participants’ responses: the discussion was rich and very helpful.  Noel Semple, for instance, commented on the speed of change in England and Wales, and we discussed why that had come about.  It’s true that regulatory change in legal education in England and Wales has become something of an extreme sport.  As you can see above, LETR did try to slow things down, and guide the process of positive reform while countering what Donald Schön memorably described as ‘dynamic conservatism – a tendency to fight to remain the same’.[3]  But regulatory change is increasing in pace in almost every jurisdiction.  In England and Wales this renders the space even more ‘ungovernable’, in Julia Black’s phrase, not less.[4]With what used to be called the Law Society of Upper Canada still in the process of its own Dialogue on Licensing it will be interesting to see what emerges in the way of shared space dialogue here in Ontario, on the ‘moral dialectic of self, profession and society’.  More of that in a later post.

 

  1. [1]One only need look at the research literature that was our inspiration for SCI, namely that on Simulated Patients, to realise the enormously rich and complex ways that the method can be used to help students learn.  The work of organisations such as AMEE, and inspirational work such as that produced by Roger Kneebone and Debra Nestel shows how powerful the approach can be.
  2. [2]And I can’t resist repeating what I said in the earlier post, since it has such resonance for SQE.  The passage below comes from Transforming Legal Education:

    A strongly competence-based education cannot provide an adequate conceptual structure for legal students or trainees. At best it provides second-order description of conduct and knowledge, as Stenhouse recognised more than 20 years ago, and Dewey before him. Alone, and acting as performance criteria or learning outcomes, such statements can become impositions on students, setting up a dialogue of learned helplessness. If these are the criteria of assessment, students argue reasonably, show us examples of acceptable performance that we may copy. For students, the focus thus moves from organic development of self to the copying of forms of behaviour and the rote resumption of knowledge. Performance criteria thus become ever more detailed, and student performance ever more baroquely imitative in order to comply with assessment criteria. In this environment the space for the growth and development of ethical awareness is diminished. What is required is the first-order ethical structure that arises not from the ethical intuitions of students or staff, nor from the impositions of a set of ethical guidelines, but from the moral dialectic of self, profession and society.

    Chapter four, ‘”By the end of the module”: the intimate dimensions of ethical education’.

  3. [3]Schön, D. A. (1973) Beyond the Stable State. Public and private learning in a changing society, Harmondsworth, Penguin, 30.
  4. [4]We quoted Julia in the introduction to the Literature Review:

    Multiple regulators operating multiple regulatory regimes make for a complex regulatory system.  To a considerable extent we currently have what we might term ‘decentred regulation’, and as Black (2002) points out, such a field is often characterized by five factors: complexity, fragmentation, interdependence, overlapping public and private interests, and ungovernability.  If we examine this in more detail we can start by observing that, as we shall see, the contemporary field is complex because of the number of regulators and the number and interests of the regulatees.  Regulatory cause and effect is therefore difficult to trace and problematic to analyze.  It is fragmented because legal education includes at the very least undergraduate courses, through formal programmed learning, open learning, distance learning, work-based learning, vocational training, traineeship, continuing professional development (CPD) and any blend of these and more.  These forms of learning are different across different occupational groupings, eg solicitors, barristers, legal executives, paralegals, legal secretaries, patent lawyers, notaries and the like.  One regulator may appear to be governing a particular field (eg licensed conveyancers) but the field itself is under constant review, and the edges between fields are blurred and frayed.  (para 8)

    Black, J. (2002).  Critical reflections on regulation.  Australian Journal of Legal Philosophy, 27, 1-35.

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