The SRA, The Qualifying Law Degree, and COVID-19: Thoughts on Law Schools and Assessment in a Time of Crisis

Professor Steven Vaughan, University College London

One of the many (many) consequences of the current COVID-19 pandemic is that university law schools are debating what to do about assessments for their law students. Some university vice-chancellors have taken a global decision to move all assessments (across the whole university) online. Others are still debating. Some are considering passporting all (or many or some) first year undergraduate students through to second year (without any summer assessments). There are debates as to what to do about final year undergraduate students (do we assess them? when and how do we assess them? when and how do they graduate?), about taught postgraduates, and about doctoral candidates. Many (most?) universities are offering online teaching only for the rest of the academic year. A number (with more no doubt to follow) are physically closing their campuses, including their libraries and various student accommodation. Students have been encouraged to move home. For some, moving home means love and support and the necessary emotional and technical infrastructures to flourish. For others, ‘home’ is not a place conducive to education, for lots of different reasons (never mind the virus). These are naturally challenging times for our students, and for colleagues teaching them, and for management teams having to make complex (and time-critical) decisions as to what they think is the ‘best’ way forward through uncertainty.

It is into this space that the SRA Education and Training Team sent two emails to providers of Qualifying Law Degrees (QLDs), one on 12 March and one on 19 March. I think we can put the 12 March email to one side. It is the 19 March email that is more interesting. It said this:

We have been contacted by some QLD and GDL providers who wish to temporarily change their approach to assessments during the outbreak period.

While the Academic Stage Handbook does not specify the form that assessments should take, or require them to be taken under supervised conditions, we do require some form of assessment for Foundation of Legal Knowledge (FLK) subjects and providers should not cancel assessments altogether. An assessment is vital to helping us ensure the integrity of professional qualifications and through this, appropriate consumer protection.

However, we recognise that some providers may want to be more flexible in their approach to assessment during this time and so online, open book, remote assessments are all permitted.  In the event of any changes to the assessment approach, we would also expect course providers to consider the risks around assessments that are unsupervised, for example, how they can be assured that the work being assessed is that of the candidates.

We are also content if you wish to postpone assessment of subjects into later academic years, so that by the time your students graduate they have been properly assessed in all FLK subjects.

While we do not approve your assessment approach, please notify us of any changes that you make to how you intend to assess candidates for FLK subjects.

Let me offer up two big thoughts on these emails:

1. On my reading of the relevant rules, I am not convinced that assessments in Foundations of Legal Knowledge subjects are required on the QLD. I think an argument can be made that all that’s needed are the credits (and if internal university rules allow – or are changed to allow – the giving of credits without assessment then that’s fine)
2. In the alternative (as I accept my argument is just that)… if the current rules do require assessment, where is the risk (in SRA terms) of university law schools (for example) cancelling assessments and pass/progressing students to the next year of study? Isn’t this the time for some regulatory flexibility, and for the SRA to reassure law students and law schools by taking a decision on that flexibility?

The below is a LONG read. And that’s partly to show the ‘working out’ of where I have come to. And partly so that law school Deans, Heads, Directors of Education etc have an easy reference guide all in one place. The length of this blog is also partly because keeping busy in today’s crisis is a good thing for my mental health. What follows focuses on the QLD, because that’s what I know best.

• tl:dr (or, ‘to précis what follows’ for those unused to Twitter-speak)
  • While there are obligations on QLD providers to inform the regulators (SRA and BSB) about various things, I am not so sure the relevant rules require assessment of Foundations of Legal Knowledge subjects (if credits can be awarded somehow, in these unprecedented times, without assessment);
  • There are provisions which allow for universities to ‘deem’ that a degree is a QLD (notwithstanding a student hasn’t taken some of the Foundations of Legal Knowledge subjects) and we (university law schools) might debate where and how we use those provisions;
  • I question (but admit the risk) whether the SRA would actually refuse to recognise a QLD (as a passport to the LPC) where a law school does A/B/C as a response to COVID-19;
  • There is NO need to teach or assess in blocks called ‘Obligations’ or ‘Property Law’ (and no need to give each Foundation 30 credits), so the SRA regs would permit you to passport first years through to second year (and second years through to final year) and then do a piece of work to ‘find’ the necessary 180 Foundation credits from the other two years of study (e.g. my final year Environmental Law module includes public law, contract law, tort, crime, EU law etc)
  • Even without the deeming provisions, or ‘finding’ Foundation credits from other places, I can’t see the risk to the public (given all of the other controls the SRA has in place on the LPC and on the training contract) in allowing some undergraduate law students… because of a global pandemic… to not sit assessments in some (some!) of the Foundation subjects. And I think the SRA should consider changing its rules to reflect the current situation.

The Regulation of Qualifying Law Degrees and the SRA’s Powers

Law degrees are regulated through a variety of mechanisms. The state exercises one layer of control via the Quality Assurance Agency and its Benchmark Statements, which undergo periodic revision. The latest for Law, from July 2015, is especially (and intentionally) broad and permissive, contains a list of non-exhaustive “skills and qualities of mind” and does not prescribe any compulsory subjects (or detail curricula etc). Instead, the Statement speaks about the, “knowledge and understanding of theories, concepts, values, principles and rules of public and private laws within an institutional, social, national and global context” and the “study in depth and context of substantive areas of law”. On assessment, the only requirement is that, “the range of assessment methods are appropriate to make valid judgements about a student’s overall level of achievement in relation to the prescribed learning outcomes.”

One layer down, the idea of “qualifying law degree” or QLD came into existence with the Ormrod Committee Report of 1971. For the first time, there was created a split between the “academic stage” and “vocational stage” of professional training to be a solicitor or barrister. The Committee said that anyone who had studied five subjects –Contract; Tort, Constitutional Law; Crime; and Land – would be deemed to have completed the academic stage. Over time, the law of Trusts and EU Law were added to these five to create what is commonly known as the “core” or “foundations of legal knowledge” subjects.

The current rules relating to Qualifying Law Degrees are found in the 1999 ‘Joint Statement’ of the SRA and BSB and the July 2014 Academic Stage Handbook of the SRA and BSB (v1.4). Regulatory control and oversight for these historically passed between the SRA and BSB, and has been with the SRA for some time (Handbook, para 3.5). The exact relationship between the Handbook and the Joint Statement is not clear to me, though the drafting (see para 1.2 of the Handbook) suggests that the Joint Statement provides the “authority” for the Handbook, and that the Joint Statement is the “reference point” for the Handbook (see para 1.5) (which, I guess, means that we need to interpret the Handbook in light of the Joint Statement). This is important for later. 

While, historically (via mechanisms such as the 1990 and 1995 Joint Announcements), law schools that wished to offer a QLD needed to comply with detailed requirements on curricula, on teaching hours, on modes of assessment etc, the 1999 Joint Statement is very light touch. It’s a short, simple and ‘thin’ piece of regulation. These are the relevant provisions in relation to programmes which will be recognised for the ‘Academic Stage’:

The course of study includes the study of legal subjects for the equivalent of not less than two years out of a three year or four year course of study, (for example, a student must gain not less than 240 credits in the study of legal subjects in a 360 or 480 credit degree programme) (para 2(iv))

The coverage of those legal subjects referred to in the professional bodies’ qualifying regulations as the Foundations of Legal Knowledge5 must involve not less than one and a half years study i.e. the coverage of the Foundations shall amount to not less than 180 credits. (para 2(v))

The course of study will normally be spread over the full duration of the degree course. Some study of legal subjects will be expected to take place in the final year of the degree course. (para 2(vi))

The course of study will be one which satisfies the external examiners of the degree programme of which it forms part that, in addition to the Areas of Performance set out in the Benchmark Standards, the students on that course of study should have acquired the knowledge and general transferable skills set out in Schedule One. (para 2(vii))

Para 5 of the Joint Statement is a catch-all provision which requires provides to send the regulators “any information about the course they may require to enable them to discharge their responsibilities under the Courts and Legal Services Act”; and then Para 6 says the regulators can withdraw recognition of any programme that “fails to comply with the conditions set out in this Statement or fails to meet minimum standards prescribed by QAA”.

Schedule One of the Joint Statement sets out the general knowledge and skills which should be addressed in any regulated course of study, and then Schedule Two details ‘The Foundations of Legal Knowledge’. Schedule Two simply lists the titles of the subjects. There are no requirements as to content or curricula. And no need to actually teach in blocks which have titles that correspond to the Foundations list (i.e. no need to actually have an ‘Obligations’ module, as long as ‘Obligations’ is studied). The Joint Statement also says nothing about the splitting of credits between the Foundation subjects. 

So, all in all, there are really just three key requirements for a recognised QLD from the Joint Statement: first, at least 240 of a 360 credit degree needs to be in the study of “legal subjects” (broadly defined); second, at least 180 of the 360 credits must be allocated to the Foundations of Legal Knowledge subjects; and third, there needs to be to have some study of ‘legal subjects’ in the final year of the degree. Aside from this, the Joint Statement is silent as to the format and approach of a law degree, and silent on modes of assessment. The Joint Statement does not use the words “assess” or “assessment” and there is nothing in the Joint Statement about matters such as pass rates, condonation, numbers of attempts etc (that we will now come on to). 

The SRA and BSB Academic Stage Handbook

Let us now turn to the Academic Stage Handbook. As from 1 January 2014, providers of QLDs have self-certified compliance with the Joint Statement (Handbook, para 7(a)). New programmes are initially validated for three years, and then on a rolling five-year basis (Handbook, para 7(b)). The SRA has the power to withdraw validation of a programme if “if there is evidence that it no longer meets minimum standards required” (Handbook, Part One, para 7(f)).

The Handbook sets out that the Academic Stage is satisfied by the undertaking of a “recognised QLD” (paras 2.4; and 3.3). Para 1(a) of Part One of the Handbook says:

Curriculum content for an award to be recognised as a Qualifying Law Degree (QLD) must be as specified in the Joint Statement and Supplement

Para 2(a) of Part One says:

Teaching and learning methodologies and strategies are not determined by the regulatory bodies, nor is the mode of study. However, teaching and learning methods must enable students to acquire knowledge and understanding of the fundamental doctrines and principles which underpin the law of England and Wales, specifically the Foundations of Legal Knowledge.

Para 4(a) of Part One of the Handbook says this: “There is no prescribed assessment method for assessing QLDs”.

So, the Joint Statement is silent on assessment and the Academic Handbook is clear that there is “no prescribed assessment method” for a QLD. As a law school, you do not have to do (invigilated) exams for a QLD; you can do what you like. This is also reflected in the 19 March email from the SRA:

we recognise that some providers may want to be more flexible in their approach to assessment during this time and so online, open book, remote assessments are all permitted.

Is there then any need to do any kind of assessments for the QLD? In their 19 March email, the SRA says this:

we do require some form of assessment for Foundation of Legal Knowledge (FLK) subjects and providers should not cancel assessments altogether.

Is that right? The only thing I can see in the Joint Statement and in the Handbook which implies the existence of assessments of any particular kind are the rules about pass marks on QLDs and on the number of attempts a student has at a QLD assessment (I am here assuming that credits could be awarded, somehow, without assessment). See, for example, the rule that “All foundation subjects on a QLD must be passed with at least 40%, regardless of any lower pass mark set by institutions” (the BSB requirement, page 27) and that “The SRA’s pass mark for a qualifying law degree is 40%” (the SRA requirement, page 35). What I am less sure of here is the disconnect between the Joint Statement and the Handbook and what that means/tells us. The Joint Statement speaks only to credits, and not to assessment. And, we know that the  Joint Statement provides the “authority” for the Handbook and that the latter is the “reference point” for the former (paras 1.2 and 1.5 of the Handbook). 

Putting this disconnect to one side, if the rules about attempts and pass marks etc imply the taking of assessments (and they probably do, although there are no rules as to the form etc of those assessments) then do law schools have any wriggle room which could be used to support their students? They might…because the Academic Handbook also contains ‘deeming’ provisions, as follows:

A QLD provider institution may, if its assessment regulations permit it, deem a student to have passed one or more subjects that he or she failed or did not take as a result of illness, bereavement or other substantial cause beyond his or her control and so award a QLD. If this results in the student being awarded a law degree without a classification, he or she will need to apply for the exercise of discretion as set out above. (para 2.13, page 28)

If a student who has been awarded a law degree was unable to take a foundation subject(s) because of exceptional circumstances that are likely to have impacted on the student’s performance, and if the provider institution’s assessment regulations permit it, the provider institution has the discretion to deem the student to have passed the subject (s), and to deem their degree a QLD. [para 1.16] Any such decision to deem a foundation subject as passed, and to deem the law degree as a QLD, must be based on exceptional circumstances, with confirmation that the provider institution’s examination board, or other relevant body, has reviewed and confirmed the exceptional circumstances. [para 1.17] (page 36)

It has been suggested to me that the SRA deeming provision speaks to ‘inability’ and that there is an argument that, “A candidate is not unable to take a foundation subject where alternative assessment arrangements are possible.” I think this is up for debate. If a student were in a serious accident, we might bring the deeming powers to bear. The fact that the student would be “able” to take the exam (say) two years after the date they were meant to sit the exam might not sway our minds. We might still say they were unable. A more complex space is where a student (because of their home life) lacks the necessary infrastructures to study at home and to sit, at home, an online exam in conditions conducive to their excelling. Is that student ‘unable’ for the purposes of the deeming provisions? Or what about the student who is, at the same time as they are studying, caring for loved ones made unwell by COVID-19. Are they to be considered ‘unable’ to sit that assessment? They might be? Or they might not? And would it be fair, taking into consideration our EDI obligations under the Equality Act (and more general considerations of equity), to make that cohort of students who would struggle (for very good reasons) to do the alternative forms of assessment that we might put in place (i.e. online assessments done from home instead of in-person exams at university) do some other form of assessment later in the year (or in a subsequent year)?

Where Do the Regs Take Us?

I think the upshot of the above is as follows:

• The SRA could, in theory, take away the validation of a QLD if it felt that the requirements of the Joint Statement and Handbook were not being complied with. That would be, in the current climate, a rather bold step to say the least, and I think we can put that to one side. 
• What is more likely (but also quite something) would be for the lack of recognition that a student holds a QLD for other purposes (most relevant here being progression to the LPC). I’ll come back to that below. 
• Providers are obliged to inform the SRA about various things. The Joint Statement and Handbook are silent as to the timing of these notifications.
• The Joint Statement says NOTHING about assessment. Nothing. Not even (in positive terms) that assessments need to done… Sure, assessments might be implied by the requirement for certain credits, but if a university took the view that a student had done enough to be awarded credits in a module without being assessed (and otherwise complied with its own internal rules and QAA rules) then I don’t think the SRA can say very much about that, save that…
• …there are, however, the rules – in the Academic Handbook alone – about pass marks (and about attempts etc) which may imply the existence and undertaking of assessments.. But there are also the ‘deeming’ provisions which, as far as I read them, might allow universities some space to amend their own internal rules to deem that entire cohorts qualify with a QLD because of the “exceptional circumstances” or through a “substantial cause” (Handbook, pages 28 and 36). This would, of course, require the law school to take a view on the ‘inability’ wording in the deeming provision that I have just spoken to. 

A Few Words About Assessment Options

I am not going to list here the many (many) ways law schools could do their assessments this year. But assuming assessment is required for regulatory purposes and universities want to avoid both in-person exams (for COVID-19) reasons and also want to avoid online exams (because of concerns as technology issues, student anxiety, potential plagiarism and essay mill issues, thousands of extenuating circumstances claims etc), what about the following:

• Option 1 – use formative assessment grades to award summative assessment grades. The Joint Statement and Handbook say nothing about the type of assessment required. The challenge here, of course, is that not every student completes their formative work, and students often do not attend to their formative work with the same care, skill and attention that they do for their formative work. 
• Option 2 – assessments regs could be altered now so that entire first year cohorts pass/progress to second year (without any assessment) and the regs amended to state that their eventual degrees will be deemed to be QLDs, notwithstanding the lack of assessment in the Foundations in the first year. At the same time, and to avoid issues over the ‘inability’ test in the Handbook ‘deeming’ provision, law schools could also do a piece of work to satisfy themselves that, over the following two years, students would leave having studied (as per the Joint Statement requirement) 180 credits in Foundations of Legal Knowledge subjects. Here, for example, I teach environmental law in the final year. It includes various aspects of public law, contract, tort, EU law, and crime. I can’t see any reason why my 30 credits (or some of my 30 credits) in Environmental Law could not be said to make up part of the required 180 credits required for the Foundations. 
  • It is important to remember two things here:
    • First, it is for law schools – and not the SRA – to decide where the 180 credits come from (there is no obligation of any kind to have a student study a module called ‘Property Law’ – what matters is is that Property Law is studied); and
    • Second, the Joint Statement says nothing at all about the content of the Foundation subjects. Nothing. So, in short, do what you like when you like as long as you are satisfied students have studied 180 credits of FLK subjects. 
• Option 3 – as with Option 3, passport entire second year cohorts into third year and do the same credit work (where students will likely have 120 FLK credits from their first year assessments)

The final option is that the SRA could relax its rules given the nature of the current situation. Waivers have been part of the SRA’s regulatory toolkit for some time; and they are part and parcel of the current approach to its framework of Standards and Regulations. What I am not sure about is where/how waivers could be done in relation to the Joint Statement and Handbook (as I think the discretionary approach in this space has previously been instead one of ‘equivalent means’ tests). But, even if waivers couldn’t be done, then perhaps the rules need to relax for this year, given what I am about to say about risk. 

Risk Based Regulation?

What I have not spoken to above are any of the general provisions of the Legal Services Act 2007 which the SRA could wave a flag about should universities do things like passport their students to another year or let students graduate without (some or much or any) final year summative assessment. I felt going into those might cause some to lose the will to live given the length of this blog. But there are, of course, very important regulatory objectives in the Act which operate on the SRA at a meta level, including protecting and promoting the public interest, supporting the constitutional principle of the rule of law, and protecting and promoting the interests of consumers. Given those, is there not a good argument that requiring some form of assessment (as the 19 March email indicates is necessary) upholds and supports those regulatory objectives?

Let me make just two points here. The first is that the SRA describes itself as a “public interest” regulator which deploys an approach of, as its former Board Chair Enid Rowlands framed it, “relentless pragmatism”. Imagine a world in which law students have gotten through their law degrees with some form of COVID-19 linked support (fewer summative assessments; or no summative assessments in particular years; or marks made up of formative work and other indicators etc etc) and where, in normal times, some of those students would not have graduated or would have had to repeat assessments or repeat entire years or would have received very low marks/bare passes. That is, imagine a world in which some (query how many) ‘incompetent’ law students graduate university. This would be a potential problem, in SRA terms, if those QLD graduates started offering reserved legal services immediately. But they cannot do that. Instead, they would (at the moment) go on to the LPC and then a training contract, both of which the SRA regulate (or CILEX qualifications, or a legal apprenticeship, which are also regulated). Given where the world is at the moment, what is the risk that is being addressed? Shouldn’t “relentless pragmatism” suggest that allowing universities to make hard choices to manage through uncertainty is acceptable given the layers of additional regulatory controls which would bite on any ‘incompetent’ law student permitted to graduate?

The second point I want to make is that the emails from the SRA go entirely against their wide-ranging programme of regulatory reform which, in effect, says to universities: ‘We do not care (in regulatory terms) about you and your law degrees, because we think there is the potential for variation in standards and practices, and we don’t (for good reason) have a great handle on that variation, and so we are going to set a centrally-assessed series of exams at the point of licence to practise as a solicitor, and we are doing it at the point of entry because that’s what really matters in terms of risk to consumers’. Reconciling the SRA’s two emails with their direction of travel on regulatory risk and the appropriate point of competence assessment is hard.

Imagine a world in which my view above of the Joint Statement and Handbook is later adjudicated to be wrong, and that universities take and implement decisions for their law students which are at odds with the SRA’s view/some adjudicated view of the regs. Imagine that, in that world, the SRA decides not to relax its regs. Imagine also that those students are later told by the SRA (or via the SRA, but by a LPC provider), “You do not have a Qualifying Law Degree. You cannot do the Legal Practice Course’. That would be quite something. The problem here, and as my colleague Ronan McCrea put it better than I could when he read an earlier draft of this blog, is that “much of the public policy and social reaction to COVID-19 has been bedevilled by a failure to realise that we are in an exceptional situation and by good faith but misguided attempts to continue with something close to business as usual.” The SRA may be falling into the same trap. 

 

 

ps – colleagues in other law schools have rightly commented, on reading an earlier draft, that I have not spoken to the legal professional regulatory requirements in other jurisdictions (Canada, Hong Kong, Singapore, Thailand etc). Maybe I will do that blog next week…