Re-Imagining Land Law & the SQE

By Prof Antonia Layard, Professor of Law (University of Bristol Law School).

On Tuesday, 26^th September, 45 self-confessed land law nerds travelled to the University of Birmingham for a workshop on Reimagining Land Law organised by Emily Caroll. The workshop – the latest in a series run by the Centre for Professional Legal Education (CEPLER) at the University of Birmingham – saw thirteen law teachers, a barrister and a judge, presenting on how to teach, assess and craft a syllabus for land law.

While the workshop’s aims were lofty (how do we teach the subject we love most effectively?) there was much debate about the proposals released in June 2017 by the Solicitors Regulation Authority for the Solicitors Qualifying Exam (SQE). The SRA Board has decided to introduce the SQE as a common assessment for all would-be solicitors from late 2020. The new qualification will consist of four elements so that, by the time candidates seek admission as a solicitor, they must: (1) have passed SQE stages 1 and 2, demonstrating that they have the knowledge and skills set out in the competence statement to the standard prescribed in the Threshold Statement; (2) have been awarded a degree or an equivalent qualification, or have gained equivalent experience; (3) have completed qualifying legal work experience under the supervision of a solicitor or in an entity under SRA regulation for at least two years (or full-time equivalent); and (4) be of a satisfactory character and suitability, to be assessed at point of admission.

This new system will replace the currently mandatory Legal Practice Course (LPC) offered by private providers and some universities, with a gap so far on where students will learn the materials on which they are to be examined in SQE 1 and 2. Since the SQE 1 assessments will need to be taken before beginning the two year “qualifying legal work experience”, the “Functioning Legal Knowledge Assessments” will need to be taught by some body, though there is currently no clear provider in mind. The SRA are only seeking a body to implement the assessment process, echoing the approach for the Qualified Lawyer Transfer where Kaplan provide the assessment but deliver no training.

In not designating a provider, the SRA write that they “do not propose to specify how candidates prepare for the SQE, but we would instead support students in making informed choices through publishing data about the performance on the SQE of candidates from particular education and training providers”. So there will not be a prescribed form of training but there is to be a league table of SQE 1 pass rates by provider. Exciting times indeed. As well as Property Law and Practice, there are five further functional knowledge areas proposed for SQE 1: (1) Principles of Professional Conduct, Public and Administrative Law, and the Legal Systems of England and Wales; (2) Dispute Resolution in Contract and/or Tort; (3) Business Law and Practice; (4) Wills and the Administration of Estates and Trusts; and (5) Criminal Law and Practice, each with their own course content.

While the initial SQE proposals have been through several rounds of consultation (drawing some very critical responses) there has been limited consultation on a subject-specific basis. The most recent framework document, the Draft Assessment Specification was published in October 2016 (as an annex) and revised in June 2017, with a suggested property syllabus that is quite different from the current property section of the statement of legal knowledge that solicitors are required to demonstrate at the stage of qualification.

In Birmingham, land lawyers spent some happy hours puzzling over the document, raising three broad questions about the proposed property law and practice training. These were (1) the content of the course; (2) the methodology of assessment; and (3) the level of the education.

Course Content

The property law and practice functioning legal knowledge assessment proposed in the SQE is to include most of the usual suspects (the “nature of land”, acquiring legal and equitable estates and interests, registered and unregistered land systems, co-ownership and trusts, easements, covenants, mortgages and the law of landlord and tenant) but not proprietary estoppel, trespass or adverse possession. It also includes an eye-wateringly large syllabus on conveyancing, planning law and property taxation, materials currently taught in the Legal Practice Course (LPC).

The question rattling round the room was who would teach this material once the LPC is abolished to make way for the SQE. Will private providers step in to fill the gap in the market? For while the SRA have suggested that Law Schools could adjust their curricula to take the SQE exam materials on board, few Law Schools currently devote the time or resources this would require (though there was near universal approval in the room for the suggestion that land law could quite happily form 50% of any LLB course, for what subject is finer?) So far, the reaction from LPC providers has been mixed. The University of Law has been broadly supportive of the SRA’s plans, BPP more critical, and the providers of American Bar Exams, silent, though perhaps sensing a market opportunity.

What should be in a land law curriculum is surprisingly contentious. While some frame the subject as a series of rules and formal principles, others – including land law teachers at Bristol – believe that addressing power, wealth and politics is crucial in understanding how land law operates today. To understand the rules on mortgages, particularly for residential homes, the ways in which leases sit on the cusp between contract and property as well as how the trespass/licence binary continues to regulate who can use public space, we need to teach students the ways in which property rules evolved, some broad statistical contexts and how different ideologies infused provisions (for example, the abolition of the 1977 Rent Act and the implication this has for litigation on leases and licences).

None of this means that we should teach a course on politics rather than land law. No land law academic would want to give up explaining the finer points of the Land Registration Act 2002 or how the courts have defined which interests are capable of being an easement. The joy of teaching land law is the ability to present complex regulatory and common law material and watch the light bulbs go off, enabling students to develop a mastery of the basic rules as well as identifying where there are differences in judgments (between judges in the Supreme Court, between the Supreme Court and the Court of Appeal or between jurisdictions). The doctrinal legal knowledge complements the teaching of legal skills – how to gut a case, how to structure a problem question or advise a client – and are all hugely important in developing logical lines of future argument or identifying possibilities for legislative reform (the Cohabitation Bill again, anyone?).

Inevitably, these are not new debates. A lively discussion occurred in the early 1980s when Kevin Gray and P.D. Symes first published their new text Real Property for Real People. This argued that “the law of property is concerned ultimately not with property but with people and their interactions”. In proposing a “social view of property”, the authors took a relational approach, now highly influential in modern property scholarship, chiming with insights in sociology, geography and anthropology. As a land law textbook, Real Property aimed to break into – and create – land law debates where two stalwarts – Megarry and Wade and Cheshire and Burn – dominated the market. And in doing so, it forever changed the ways in which (some of us) teach land law.

The question then – as now – is how much context was appropriate for a land law text, what type of political argument, how the history was done. Stuart Anderson – author of the much-respected text Lawyers and the Making of English Land Law 1832-1940 – noted that “the materials are available for a proper historical account of modern land law, both in its politics and its economics. They can start to explain modern statute law, and also to show why different sorts of land dispute seem to come before the higher courts. Judical reaction is more difficult to explain, but at least a careful description based on all the evidence should be possible …”. His point being that we might use historical research to account for how the rules developed within a legal context, but that we should be careful in how we consider the broader contexts of wealth and privilege.

Similarly, Bernard Rudden wrote in 1982 that “we must face the fact that, whether we like it or not, the English law of property is a law of wealth. In dealing with things as objects of commerce, investment or endowment it is elegant and efficient, investing feudal terminology with mercantile content until the relation between the words used and their actual function is as remote as that between the spelling and the pronunciation of the English language”. His suggestion is to ignore the elephant in the room – the fact that property is “a law of wealth” – and to get on with teaching the rules.

Characterising land law as “an ugly duckling” (surely a beautiful swan in the making) Kate Green argued in 1985 that this focus on abstraction (teaching land law about “Blackacre”, “Greenacre” and other acres in colours of your choice) produces a “flaw” of “splendid’ isolationism. Bereft of any context, real property law is accepted far too uncritically, for the study of land law without a study of its context means that students are not in control of the subject but that the subject is in control of them”. These debates in the early years of the Thatcher Government, particularly with the Housing Acts of 1980 and 1988 are as relevant today – in times of plummeting home ownership rates and the ongoing privatisation of public space – as they were then.

In perhaps its greatest conceptual innovation, Gray and Symes’ Real Property for Real People (re)introduced a focus on land use (the heading for the two chapters on easements and covenants) identifying a break with the conventional focus on the machinery for the acquisition of estates and interests in land (freeholds, leases, mortgages, registration and so on). This is the work that Kevin Gray is best known for now, which he has so powerfully gone on to develop in his scholarly writing as well as in future editions of the textbook, now Elements of Land Law, co-written with Susan Gray. This is a text that explains the rules in exquisite detail, whilst also providing chapters on land use that other textbooks still do not cover (the fifth – and most recent – edition of Elements was in 2009, there are rumours of a new edition, which would undoubtedly be the best Christmas present many a land lawyer could hope to receive).

This pushing at the boundaries of the land law syllabus is as significant today as it has been for generations. As Kevin Gray has illustrated, land textbooks can lead the way as well as documenting changes once implemented. His consistent focus on land use throughout the editions, chimed with the introduction of the Right to Roam in 2000 – barely covered in the majority of land law texts – and the understanding of rural, urban and suburban land as a public good which must be protected as much as commodified for ownership. Of course, Gray was not alone in this. Writers including Marion Shoard (This Land is Our Land (1987) and The Right to Roam (1999)) and the campaigns by walkers, ramblers and Parliamentarians for over a century, produced a shift in our understanding of co-existence on land. Legislatively and culturally the changes in the Countryside and Rights of Way Act in 2000 further weakened any perceived absolute “right to exclude” for mapped land, even if such roaming rights remain weaker than those available to walkers in Scotland or Sweden. Conceptually and practically these changes are a crucial part of land law that should (surely?) be included in any syllabus.

And of course, none of these books – even Megarry & Wade, which comes closest – would teach conveyancing in the way anticipated by the SQE. One of the features of LPC education is that the teaching materials are proprietary; there is no equivalent range of reliable and comprehensive LPC textbooks as there is for land law. To some extent then, until the sample assessment questions are published we are not quite sure what needs to be taught (let alone where). Certainly there is a belief amongst some land law academics that conveyancing is not an appropriate area of study for a university education. As P H Kenny put it back in 1982, the suggestion that land law is “really conveyancing”, is for the academic lawyer ‘the taunt of “Philistine”’. As legal training is currently configured, it is broadly accepted that “teaching law as a practical or operational subject is something that should (or even must) logically come after the theory of the subject that has been mastered”.

Today the preferred phrase for conveyancing is “real estate law and practice”, (as Warren Bar noted in Birmingham, talking about changing “Land Law II” to “Commercial Real Estate at Liverpool”, names matter). Yet the question whether Law Schools are the best place to teach these primarily practical skills continues (let alone how we would find the time to include them in a land law syllabus). LPC providers generally devote 30 credits to “real estate law and practice”, with further advanced option available. This is more time than many Law Schools devote to land law in total. And as the teaching workshop illustrated, there is no lack of enthusiasm amongst academic land lawyers to teach, just much head scratching about the logistics.

Indeed, at the Birmingham workshop, Abigail Jackson, who worked for Simmons & Simmons and for the Treasury Solicitors Department before entering academia in 2016, questioned the focus on conveyancing at a time when so much of this work is undertaken by licensed conveyancers supplemented by a rise of automated systems. For as the foreword to the 2016 SRA consultation on the SQE, noted: “The professions are changing and changing fast as they respond to new pressures, new business models, new markets and new technology”. If this is right, should we then include so much material on conveyancing or would a broader focus on property litigation, alternative dispute resolution and the drafting of commercial real estate documents be a better test? (Many of the lawyers at the Birmingham workshop thought so). The word “procedural” is frequent in the Draft Assessment document but there is no explicit reference to drafting a lease or other property document in SQE 1. Which of these skills should be prioritized in 2017? These are open questions.

Methodology of Assessment

In addition to these lively debates about what the contents of a land law syllabus might be, there are questions about assessment. One of the most provocative aspects of the proposed SQE is that unlike the current LPC, which is assessed by a mix of methods including exams, coursework and presentation, the SQE 1 is to be assessed by “six computer-based examinations”, including “single best answer questions, extended matching questions and multiple choice questions”. The suggestion is that there would be 120 questions for property law and practice. While the SRA ask a question about the use of open book exams in the Draft Assessment Document, there is no formal consultation on this point.

As it stands then, the SRA’s SQE 1 draws on the Qualified Lawyer’s Transfer Test, administered by Kaplan, which also has only multiple choice test questions in the first stage and a form of objective structured clinical examination in the second, called Practical Legal Skills Assessments. The methodology draws on medical education where diagnosis and response is central to clinical education. While Kaplan is insistent that this form of testing is “reliable”, this is in the sense of statistical reliability, rather than as an indicator of whether the qualification produces “reliable” solicitors. The qualified lawyers transfer test has a pre-requisite – candidates must already be qualified lawyers in other jurisdictions to qualify as a solicitor of England and Wales or barristers qualified in England and Wales who have completed pupillage and want to qualify as a solicitor. These candidates will have completed a far longer legal education than most law students sitting the SQE in England and Wales.

Few at the Birmingham workshop doubted whether there might be a small role for computer based assessments, though there were cautionary tales about how to set questions and the difficulties of over-simplifying complex areas of law. Elizabeth Cooke, now Principal Judge of the Land Registration division of the Property Chamber, First-tier Tribunal but formerly a Law Commissioner (2008-2015) and a Professor of Property Law at the University of Reading, was speaking for many when she asked whether the simplicity required by multiple choice questions might train students in giving simple, straightforward legal answers. Many litigants that she sees, she suggested, particularly litigants in person, might be persuaded by ten minutes of good, clear legal advice to mediate or resolve their differences, rather than entering a bruising judicial system. Some use of multiple choice or single best answer questions might well be useful (and cheap to mark). A Law School curriculum and solicitors’ training are quite different, and the ability to make a quick best or least worst selection, would certainly be useful professional training.

Level of Education

However, if the SQE is to be a Level 7 qualification (on the Framework for Higher Education Qualifications of UK Degree Awarding Bodies (FHEQ) level descriptors scale), as AlphaPlus, the consultancy commissioned by the SRA, suggest, then it must demonstrate a high level of education. In their report, AlphaPlus note that “the key defining factor in being a level 7 qualification is the creation of new knowledge or insights. Within the professional context of law, this may be difficult to demonstrate in general, given that many approaches are constrained by established ‘case law’. The SRA may need to consider what this requirement looks like within the context of qualifying as a solicitor and ensure that this is designed into the SQE for the level 7 classification to be warranted”.

AlphaPlus have concluded that they would only be able to assess the educational level of the assessments once the question papers are available. As the land lawyers in Birmingham found, puzzling over the apparently simple but often alarmingly confusing multiple-choice questions, the devil will be in the drafting. This is particularly important when failing the computer-based assessments could be critical (in the proposed SQE – unlike the equivalent course at the Bar, the BPTC, there are so far to be no compensatory mechanisms). The SRA state that in both SQE 1 and 2 “Candidates are not required to recall case names or cite statutory authority except where specified and they will not be assessed on the development of the law”. Given that a student not recalling case names or citing statutory authority would be unlikely to pass their first year exams (a level 4 FHEQ), this raises some doubts about the level of the educational expectations. After all, while in the multiple choice tests for the qualified lawyers transfer test, the candidates will have already completed a legal education, for students sitting the SQE, these are earlier days in their professional development.

Educating Law Students post-2020

These debates then raise broader questions about what a university education is for? At Bristol, three new University-wide pathways, Bristol Futures, are being introduced (innovation & enterprise; global citizenship and sustainable futures) which students can engage with to “enhance their research-rich disciplinary study with multi-disciplinary and extra-curricular activities”. The aim of our Law School is, in the words of our Head of School, Joanne Conaghan, to provide “an intellectually demanding, research-informed legal education. Combining teaching and research excellence to deliver a challenging and rigorous curriculum makes our graduates stand out – able to demonstrate excellent legal, analytical and reasoning skills and empowered to pursue top flights careers”.

So how then should we proceed? Clearly there is a balance. The political economies of Law Schools are such that not only is the SQE on the horizon but also the subject-level Teaching Excellence Framework (TEF) assessment; annual National Student Survey scores (NSS), which feed into university league tables, as well as the next Research Assessment Exercise (REF), on the basis of which research funds will be allocated. There are undoubtedly useful changes that could be made in solicitors’ education. LPC costs continue to rise (to over £15,000 for some providers in London) and students can take this qualification without any prospect of a training contract. The profession suffers from a lack of diversity, particularly at elite levels (despite the fact that 67% of applicants to Law School are women, and 36% are from ethnic minorities). And for Law Schools it is striking that a significant number of new trainee solicitors have not studied law at university but have taken a GDL or other form of legal training (such as Bristol’s MA in Law) instead.

Contextualising land law within these broader debates is educationally rigorous and enables us to teach with enthusiasm, energy and (not a little) excitement. It engages students’ interest (many of whom are, without family or other subsidy, very likely to be members of “generation rent”) and lets land law academics explain the political – as much as the legal – choices made, the winners and losers politically, for example, in rented housing, mortgage finance or public space. As Emma Waring explained drawing us in with a problem-based learning example used at York, narrative is at the heart of land law. The stories of shy farmers, heart-breaking ex-partners and ruthless landlords have drawn students in for generations.

Within these broader educational landscapes, an undergraduate law degree focuses on a broad, intellectually challenging, liberal arts curriculum, understanding legal rules and governance in all their splendor (and iniquity). Universities are spaces for debate – as well as for skills and knowledge acquisition – students will always have to learn some materials by rote (mnemonics to memorise cases are as much in use in 2017 as in previous generations). Yet we are also (to use that much over-used word) passionate educators. The questions about the course content, assessment methodology and level of education are puzzling and as land lawyers, we are collectively thinking about how we might help each other proceed, even if individual institutional decisions may be made.

And so, as the Birmingham workshop found, the world of land law teaching is in heady times. While all are wedded to teaching doctrinal rules and practices, there was a sense that the syllabus is for the making. Universities are not professional training bodies; for all that they do, and should, teach a wide range of skills and knowledge, preparing students for careers ahead. In the words of the great orator Martin Luther King: “The function of education is to teach one to think intensively and to think critically. Intelligence plus character – that is the goal of true education.” Land law is about power, politics, wealth, rules and procedures. To teach our students well, we need to aim high.