Closed Consultation

Proposal 1 – Remove complex and inflexible exemption arrangements

To introduce the concept of "Equivalent Means", creating greater flexibility within the current routes to qualification by enabling us to recognise equivalent education and training

What was the original purpose of the regulations?

Most people seeking to qualify as a solicitor must complete a series of specified stages of education and training, a qualifying law degree (QLD) or the Common Professional Examination (CPE), followed by the vocational stage – the Legal Practice Course (LPC), training contract, and Professional Skills Course (PSC). The current regulations are built around completion of these stages in the prescribed order and with strict limitations on what other forms of education and training can be recognised as satisfying our requirements. These situations are dealt with by granting an exemption from our requirements or by including provisions within the Training Regulations relating to specific circumstances. For example, the current regulations allow specific exemptions for Chartered Legal Executives and Justices Clerks Assistants.

Why are we recommending this change?

The current provisions restrict our ability to recognise diverse means of satisfying our requirements even when we can see that an individual has met the same outcomes to the standard which we specify. This means that we cannot at the point of application be transparent about the circumstances in which we will recognise other qualifications and individuals instead have to try and demonstrate that their circumstances are sufficiently exceptional to justify an application for exemption or waiver.

The new regulations will allow for the completion of the academic stage "by Equivalent Means" (see new regulation 2.2) provided that what is presented as equivalence is assessed by us against explicit criteria and is supported by appropriate evidence supplied by the applicant. This will allow us to continue to ensure that standards are secured but without the need for detailed prescription within the regulations which may be restrictive and impose unnecessary barriers to some individuals.

The new regulation will also provide a regulatory basis for assessing individuals who seek to qualify under the principle established in Case C-313/01 Morgenbesser v Consiglio dell'Ordine degli avvocati di Genova (13 November 2003). This requires us to assess the competences of part-qualified EU national lawyers holistically, by evaluating their abilities, knowledge and competence to be a solicitor. Currently, we deal with these applicants outside the scope of any specific regulation. The proposed change will bring these cases within the scope of our regulatory framework.

We do not anticipate that this proposal will give rise to any negative impacts in terms of equality and diversity or regulatory risk. The regulation will be supported by clear and transparent criteria and guidance on how we will deal with applications under this regulation. These changes have the potential to have a positive impact as they will result in greater flexibility to consider candidates from diverse backgrounds who have demonstrated they meet our outcomes to our standard through Equivalent Means.

Proposal 2 - Remove the requirement for a certificate of completion of the academic stage to be issued by the SRA

To remove the necessity for students to apply to us for a certificate to confirm that they have completed the academic stage of training.

What was the original purpose of the regulation?

The purpose of the regulation was to provide certification that a student had completed the academic stage of training as specified by us. Under the current approach, we check that a student has completed the academic stage by analysing their degree or CPE results and then issuing a letter to the student confirming this. The student is then required to present the letter to their prospective LPC provider.

Why are we recommending the change?

The current process is bureaucratic and unnecessary. All students completing their academic studies are provided with a transcript of their results which evidences their completion of study and standards achieved. This is a requirement of the UK higher education regulator, the Quality Assurance Agency (QAA). The transcript is the best evidence of a student's academic achievements and is recognised across the higher education sector and by employers.

Students who progress onto the LPC are required to show their transcripts to their providers as part of the admissions process. Requiring students to make a separate application to us for recognition of completion of the academic stage is therefore a duplication of existing systems and structures.

Our proposal will remove an unnecessary application process for students, and will relieve education providers of reporting something to us which they will themselves subsequently check.

Proposal 3 – Remove duplicated arrangements for the CPE and LPC

To remove requirements which duplicate the regulatory requirements placed on higher education institutions (HEIs) by the Quality Assurance Agency (QAA)

What was the original purpose of the regulation?

The Qualification Regulations contain detailed requirements about an individual's eligibility to commence the CPE, seek exemptions, and change from one provider to another part way through their studies. They also detail successful completion of the LPC. The regulations were developed prior to the creation of the QAA to quality assure aspects of the education and training framework.

Why are we recommending this change?

The requirements which we need to place on providers to assure the quality and standards of provision are set out in our procedures for approving CPE and LPC providers. There are robust procedures for authorising providers and validating course provision and so the requirements do not need to be duplicated in the Training Regulations.

The QAA is recognised as the sole agency with responsibility for the assurance of academic standards and the quality of higher education in the UK. It safeguards standards and improves the quality of UK higher education by defining the expectations for quality and academic standards that all HEIs must meet in the Quality Code for Higher Education. Those parts of the current regulations which duplicate QAA requirements are therefore unnecessary. This includes for example, arrangements and procedures for students who are transferring from one institution to another. Providers which are not subject to the QAA's Quality Code and other requirements will only be validated on condition that they agree voluntarily to comply with them.

The current provisions also contain inconsistencies which we wish to remove. Applications for exemptions from part of the QLD are dealt with by providers in compliance with the QAA Quality Code on the accreditation of prior learning whereas applications for exemptions from the CPE are dealt with and processed by us. We propose a consistent approach to exemptions by placing responsibility on QLD and CPE providers to give accreditation for prior learning¹ where they consider it appropriate. We will focus our effort on ensuring that at the point of approval, the provider has in place sound policies and practices to deal with the accreditation of prior learning.

We do not anticipate any impacts on individuals, except a general benefit to all students from a streamlining of processes and removal of duplication.

1 See QAA's Quality Code Chapter B6.

Proposal 4 – Clarify the regulatory requirements for training (1)

To remove the requirement for training to take place under the terms of a contract specified by us.

What was the original purpose of the regulation?

A key principle of our training requirements is that intending solicitors must develop practical competence in the workplace. Over the past thirty years or so this has been achieved through service under a training contract.

During the two year period of training we expect trainees to receive:

• training in at least three distinct areas of law and practice,
• experience which allows a trainee to develop their skills to meet the Practice Skills Standards and includes guiding and tutoring in professional conduct, ethics, and client care,
• training which is properly supervised and regularly appraised

at an organisation approved and regulated by us for that purpose.

Additionally we specified that this training should take place under a standard contract provided by and registered with the regulator.

Why are we recommending the change?

We do not propose at this stage to change the requirements relating to the content and duration of training. We believe that our regulatory focus should be on defining and assuring the standard and quality of training, and being able to take appropriate remedial action where those requirements are not met. We do not consider we should be specifying the employment rights and obligations which subsist between the trainee and the training provider.

We propose removing the need for training to take place according to the terms of a contract prescribed by us. Our requirements for trainees are instead expressed through the concept of a period of "recognised training" (new regulation 5.1). We also propose removing the provision that says that a training contract cannot be ended without the express permission of the SRA.

We will still require an authorised training provider to notify us about every individual commencing a period of recognised training. In this way we will still capture information about the number of individuals in recognised training at any time.

Our proposal maintains the requirements relating to the content and breadth of training, as well as supervision, appraisal, maintenance of a training record and final sign-off by the training principal. We also retain our quality assurance role: we can still require further training if we are not satisfied that the training is adequate, revoke authorised training provider status, and/ or refuse to recognise a period of training.

One of the drivers behind these changes is our involvement in contractual and dispute resolution issues². When a trainee leaves a firm before the end of their contract, the current arrangements mean we have to terminate that contract. If it is by way of mutual agreement, it is a straightforward decision, but it requires a formal application to us and an unnecessary waiting period for both trainee and provider. If there is a redundancy or disciplinary situation, again an application to us must be made, but the decision becomes less straightforward and a matter for an SRA adjudicator.

We never refuse to terminate-a regulator cannot force an employer to reinstate an employee, nor do we impose financial penalties as the Employment Tribunal might. We decide whether to recognise, or 'bank', the experience the trainee has accrued. Furthermore, the trainee may not commence another contract until we terminate the first. This bureaucratic approach adds no value and offers no additional protection over and above those under general employment law; in situations of dispute it is the Employment Tribunal, not the SRA, to whom the trainee should refer. Our involvement in this process adds a layer of bureaucracy and confusion; and it is not normally part of a regulator's functions to become involved in contractual issues relating to employment (the SRA is not involved in other aspects of lawyers' employment).

The training contract is a contract of apprenticeship. This leads to enhanced obligations on the parties. For example, an employer can terminate a contract of apprenticeship early only where there is serious misconduct, the apprentice is so incapacitated that he or she is incapable of being trained or where the business has closed or fundamentally changed. Where a trainee is unfairly dismissed, compensation can reflect loss of earnings and the loss of prospects attaching to the qualified position to which the apprenticeship ultimately leads. This position would be unaffected by our proposals.

However, we acknowledge that moving our requirements in relation to the training contract from the terms of the contract into our training regulations affects the trainee's contractual remedies against their employer. It has been argued that trainees are in a vulnerable position, and that therefore some additional protection should be preserved. An alternative approach would be to require training providers to incorporate regulations 11 and 12 into their contract with a trainee, to give trainees an express contractual remedy against their employer should these be breached.

2 currently set out in Qualification Regulations 23.3, 25, 26 and 27 and Training Provider Regulations 4.1(d), 4.2, 6.1(e) and (f), 13 and 14.5

Proposal 5 – Clarify the regulatory requirements of training (2)

To remove the restrictions on the number of trainees a firm may train, and how many practising certificates a training principal must have in order to hold that role.

What was the original purpose of the regulation?

We sought to ensure the quality of training provision by limiting the ratio of trainees to partners and senior solicitors (2:1) and by specifying the number of practising certificates which must be held by a solicitor seeking to take on the role of training principal (one current and four previous consecutive certificates).

Why are we recommending the change?

The trainee/partner ratio was meant to ensure adequate supervision for trainees and their socialisation into the profession with qualified and experienced practitioners. There is, however, no data to support the assumption that the quality of training and supervision is assured by specifying minimum numbers and it may unjustifiably restrict the number of training places available. Similarly the four practising certificate requirement for training principals was intended to guarantee experience and expertise.

We receive a large number of applications for waivers from both requirements. We are able to grant almost all of these waiver applications because they demonstrate that there is no risk to the quality of training. These are restrictive requirements which create artificial barriers and unnecessary bureaucracy. The large number of waiver applications indicates that the current regulations do not deal with current training systems. Our regulations should reflect our focus on the quality of the training, not artificial, arbitrary measures such as the ratio of trainees to partners and numbers of practising certificates.

A more appropriate means of establishing the ability of a training provider to deliver good training is to look more holistically at their resources and infrastructure. We are drafting criteria to support good decision making which will better recognise the various business structures delivering legal services.

Our new regulations replace the requirements on "training establishments" and "supervisors" with a new concept of an "authorised training provider"³. An authorised training provider is responsible to us for providing trainees with the appropriate training experience to the standard we specify. The provider is required to nominate a training principal who is able to ensure that the requirements for training are met, and to ensure the right people supervise their trainees.

We believe that removing unnecessary restrictions and focusing on the quality of training will have no negative impacts, and could possibly encourage firms to offer more training contracts.

3 see new Regulations 9 and 10 and the new Glossary definition

Proposal 6 – Rephrase the requirement for trainees to experience a breadth of legal practice

To remove the requirement for development of skills in "contentious" and "non-contentious work", and amend the wording of the three areas of law requirement to "at least three distinct areas of English law and practice".

What was the original purpose of the regulation?

These requirements were intended to ensure breadth in trainees' experience so that they have a rounded legal education and training at the point of admission.

Why are we recommending the change?

We currently specify three requirements to ensure a trainee has a broad training. They are that the trainee;

• 1. gains experience in three distinct areas of law,
• 2. gains experience in contentious and non-contentious work, and
• 3. meets the requirements set out in the SRA's Practice Skills Standards.

The Practice Skills Standards on their own state our expectations of the depth and breadth of a trainee's training. They include requirements relating to contentious, or dispute-based, matters, such as skills in advocacy and dispute resolution, as well as requirements relating to all matters whether contentious or not, such as case management and client care. We believe that our current requirements therefore overlap and that there is no need for us to specify a requirement for experience of "contentious work" and "non-contentious work" over and above what is set out in our Practice Skills Standards. This proposal does not substantively change the requirement for both contentious and non-contentious work.

Moreover the current requirement for firms to provide "practical experience in at least three distinct areas of English law" does not reflect the typical areas of modern practice. It is more accurately and practically restated (in new regulation 11.1(b)) as "practical experience in at least three distinct areas of English law and practice". This provision will also have the effect of reinforcing the practice requirements set out in the Practice Skills Standards.

As the requirements are remaining broadly similar, we expect few impacts, beyond alleviating confusion which often results in queries to us over whether periods of experience, and even particular pieces of work, are contentious or not.

Proposal 7 – Remove the requirement for student enrolment

To remove the requirement in part 3 of the Qualification Regulations to have student enrolment in place before commencing a Legal Practice Course and serving under a training contract.

What was the original purpose of the regulation?

This requirement facilitated student membership and early engagement on behalf of the professional body with its student members. It also provided a mechanism for an early check on students' suitability to enter the profession.

Why are we recommending the change?

From a regulatory perspective, the student enrolment process has only one function; it provides an early check on someone's character and suitability to enter the profession. Under the present system we enrol circa 9000 individuals as student members each year. Approximately 3% of these 9000 present a suitability issue requiring assessment and only a small percentage of those are ultimately refused student enrolment. We believe there is therefore a more targeted, proportionate and efficient way of identifying character and suitability issues.

This proposal removes the requirement for all students to apply for student enrolment before commencing the LPC and replaces it with a requirement that anyone with a character and suitability issue disclose it to us for assessment before they commence a period of recognised training.

New regulation 6 actively requires individuals to disclose to us any character and suitability issues they may have. This must happen before the period of training starts: that is the point at which the need for public protection arises. It is not a global requirement for all prospective trainees – only those with issues need apply to us. Students with a character and suitability issue who are concerned about incurring the costs of the LPC may also apply to us prior to commencing the LPC for formal assessment under the Suitability Test.

No individual will be allowed to commence a period of recognised training until all character and suitability issues have been considered by us and a decision made. We will apply the standards of our Suitability Test exactly as we apply them at admission. This ensures that we properly address risks and meet our responsibility to the public to ensure that trainees involved in providing legal services to clients are suitable and of appropriate character. We will provide guidance so that all those going through the process will be aware that if they have issues, they must notify us.

This solution, unlike the current student enrolment system, is targeted and proportionate to risk. There is still a requirement to disclose character and suitability issues at the point of admission and we will treat any failure to disclose when required as prima facie evidence of dishonesty.

We expect students to benefit from these streamlined processes, including the cessation of the £80 enrolment fee, and we do not anticipate any impacts in terms of equality and diversity. In terms of regulatory impact, we do expect that this will allow a clearer focus on cases of actual risk.