Part Two: Final Exams – Assessing Competence of Solicitors to be in England and Wales: A European perspective
Many continental European and other Bars have entry exams that precede access to the profession of lawyer. These were often proposed where the Bar or others were worried about the quality of entrants (Russia)(Spain)(Germany), or sometimes the State intervened to decrease what was perceived as an entry barrier to the profession (Poland), or to decrease the price of legal services (Poland), or, more ominously, weaken the strength of the legal profession which was acting as a barrier to inroads into the rule of law (Turkey, where the Bar exam was removed).
Sometimes the assessment by a Bar exam has arguably been over rigorous (Germany) or repeating what has already been assessed at university (Germany, France). In Germany a whole new sector of trainers (the Repetitor) thrives on the needs for coaching to pass the State Bar exams. The method of assessment (SQE) proposed by the SRA, with no exemptions, risks becoming a double assessment of this sort. But, given the novel, if not groundbreaking, proposed designs of the assessments, the SRA could perhaps avoid this charge. The Part 2 (legal skills) assessment, in particular, is likely to be a first in Europe for lawyers. Teaching to a test will still be a risky business, but not so much if the test accurately assesses the skills and knowledge that you want your candidates to possess (i.e. testing higher analytical levels towards the top of Bloom’s taxonomy).
Naturally qualification and competence requirements for a national legal profession should be for that profession to determine, an internationally recognised principle. EU law, in the main, does (can)not venture into questions of the content of training per se. However it does have mutual recognition requirements that are reflected in the SRA consultation paper where it indicates that there will not be ‘exemptions’ to the SQE other than those required by EU legislation (§45). Under EU law incoming potential solicitors who are not using the services or establishment routes (Directives 77/249 and 98/5) to practice law can request that their competences be assessed against the appropriate SRA competence statement. Only where there are significant missing elements can an ‘aptitude test’ be required, and there must be exemptions from assessment for those areas where the migrant has shown they are sufficiently covered. Why could the SRA not consider allowing this for UK trained potential solicitors?
France is also currently reviewing its entry route into the profession of avocat. The reforms are under disussion to alter its initial and exit exams that bracket the post university initial stage of training, and to shorten the whole initial training to a one year duration (from 18 months). The Conseil National des Barreaux (CNB) has already published a Decision that streamlines the training course within its initial training and attempts to re-orient it to become a very practical experience. The prescribed route though, is still within the Écoles d’Avocats, whose programmes will become more harmonised. Whilst the reform process in England and Wales is still open, perhaps a shorter period of initial training (period of recognised training (PRT)) could also be considered by the SRA?
The SRA must also be careful to be able to justify properly any new entry barriers that they will be imposing. The European Commission are reviewing and assessing the barriers to entry to regulated professions, and the scope of their reserved activities, following national reports explaining and justifying their existence. See Reviewing entry restrictions and reserved activities of European professions: Transparency for Europe’s professions. The current process of revision of access routes and entry modes into the English and Welsh profession of solicitor seem to have competence and quality as their motivation.