Closed Consultation
Higher rights of audience
11 July 2007
This consultation is now closed.
In early 2007, we consulted on whether the current restrictions on higher rights of audience are justifiable—in the interests of the public or the proper administration of justice.
We asked whether solicitors should be required to achieve a separate qualification to exercise rights of audience in the higher courts. We asked, too, whether standards can be secured through some other, probably voluntary, quality assurance mechanism.
The three-month consultation period ended on 12 April 2007.
Our board has considered the results of the consultation; you can download an analysis of responses below. A majority of respondents favoured ending the restrictions. However, many in that majority were in favour of an alternative quality assurance mechanism.
The board favours deregulation, but also believes that provision should be made for a voluntary scheme, assessing set standards of knowledge, skill and competence for criminal, civil and family advocacy in the higher courts. The board's view is that solicitors should have rights of audience—whether or not they are accredited. But the board also believes solicitors should be strongly advised of the virtues of accreditation in order to satisfy the competence requirements within the Solicitors' Code of Conduct.
See more-recent information about our accreditation proposals
The existing higher rights arrangements remain in place. Changes to the requirement for the higher rights qualification are unlikely to be implemented until the end of 2008, following consultation with the Ministry of Justice and the judiciary.
Our consultation discussion paper (along with several detailed appendices), the consultation questionnaire and an analysis of responses, including a list of of individuals and organisations who responded, are available below.
- Download the analysis of responses.
- Read the discussion paper.
- Review the questionnaire.
Discussion paper
Contents
- Objectives of the consultation
- Background – historic roles of solicitors and barristers
- Securing standards
- Options for reform
1. Objectives of the consultation
1.1
The Solicitors Regulation Authority (SRA) was established in January 2006 (then known as the Law Society Regulation Board) as an independent body specifically for regulating solicitors. Since that time, the SRA has developed its own strategy and the first stage of its implementation plan. A key part of the strategy is to secure standards of character, intellect, skills and knowledge required of solicitors to protect clients and uphold the rule of law. In line with the principles of good regulation, the SRA's approach to providing assurances that its standards continue to be met by solicitors will be based on an assessment of risk, including the vulnerability of particular groups of clients.
1.2
We are examining the necessity for solicitors to achieve a separate qualification before being permitted to exercise rights of audience in the higher courts or whether standards could be secured through some other quality assurance mechanism, probably on a voluntary basis. We are keen to seek the views of stakeholders on this issue.
1.3
The consultation will end on 12 April 2007. We will publish a summary of responses, together with names of individuals and organisations who respond, where these are known.
2. Background – historic roles of solicitors and barristers
2.1
Historically, the courts determined which advocates had rights of audience before them. Rights of audience for solicitors were generally limited to the lower courts, while barristers enjoy rights of audience in all courts from completion of the second six months of pupillage. It was thought that the separation of the legal profession was in the interests of justice with the solicitor meeting the needs of clients, developing a rapport with them, taking full and proper instructions, advising on likely outcomes and preparing cases for trial. This continues to be reflected in the pre-qualification standards for each of the professions; the Bar places far greater emphasis on training in advocacy, including rules of evidence and examination of witnesses.
2.2
The Courts and Legal Services Act 1990 (CLSA 1990) made provision for solicitors to achieve higher rights of audience, pursuant to Regulations. In discussions surrounding the introduction of the Higher Courts Qualification Regulations 1992 (the 1992 Regulations) the Lord Chancellor's Advisory Committee on Legal Education (ACLEC) contended that the training in advocacy, higher court procedures and rules of evidence available to trainee solicitors did not equate to that undertaken by trainee barristers. This view was supported by the Lord Chancellor and judiciary and led to the introduction of focused training for solicitors who sought higher rights of audience. Following lengthy negotiations with ACLEC, the senior judiciary and other stakeholders under the Schedule 4 procedure (schedule 4 of the CLSA 1990 as amended by Access to Justice Act 1999 (AJA 1999) sets out the procedure to be followed for approval of Rules and Regulations affecting reserved areas of work) and involving the Bar Council, the 1992 Regulations were approved.
2.3
A review of the operation of the scheme in 1995 led to the implementation of the Higher Courts Qualification Regulations 1998 (the 1998 Regulations), intended to provide greater equality of opportunity for solicitors to achieve higher rights of audience (HRA).
2.4
AJA 1999 introduced the concept that, on admission, all solicitors had full rights of audience in all courts in all proceedings but required solicitors to comply with training requirements and rules laid down by the Law Society. This led to the implementation of the Higher Courts Qualification Regulations 2000 (the 2000 Regulations), which amended existing routes to qualification and introduced additional routes.
2.5
To date, around 3,000 solicitors have attained higher rights qualifications. The higher rights qualification for solicitors is a one-off achievement, with no provision for review of ongoing competence.
2.6
In parallel with this consultation exercise, discussions are taking place between the Department for Constitutional Affairs, the SRA, the Bar Council and other interested parties about the recommendation for a quality assurance scheme for advocates contained in the report of Lord Carter's Review of Legal Aid Procurement. Such a scheme would apply to all advocates, whether solicitors or barristers; and Lord Carter recommended that it should be piloted for advocates appearing in criminal cases before the Crown Court. It would not restrict the right of solicitors to appear before the higher courts but could be used by the Legal Services Commission and others as a basis for procurement decisions and would be a relevant consideration in addressing the options outlined in Section 4 below.
3. Securing standards
3.1
The debate around the gradual relaxation of restrictions has largely taken place within the legal professions and the judiciary. Opposition to relaxation has been based on concerns about competence, but is linked with a measure of protectionism. The challenge for us, if restrictions are relaxed, is to provide confidence to the judiciary, as well as to clients, that solicitors appearing in the higher courts are competent to do so.
3.2
The regulatory objectives set out in the Legal Services Bill are
- to support the constitutional principle of the rule of law
- improving access to justice
- protecting and promoting the interests of consumers
- promoting competition in the provision of services
- encouraging a strong, diverse and effective legal profession
- increasing public understanding of the citizen's legal rights and duties
- promoting and maintaining adherence to the professional principles
3.3
The SRA has defined its purpose as
To set, promote and secure in the public interest standards of behaviour and professional performance necessary to ensure that clients receive a good service and that the rule of law is upheld
3.4
We have adopted the government's principles of good regulation:
- Proportionality: Regulators should only intervene when necessary; remedies should be appropriate to the risk posed, and costs identified and minimised.
- Accountability: Regulators must be able to justify decisions, and be subject to public scrutiny.
- Consistent: Government rules and standards must be joined up and implemented fairly.
- Transparent: Regulators should be open, and keep regulations simple and user friendly.
- Targeted: Regulation should be focused on the problem, and minimise side effects.
3.5
As a quality assurance mechanism, there can be little doubt that the HRA qualification is intended to protect and promote the interests of the consumer and to support the rule of law. However, it is less clear that the qualification is proportionate and/or consistent.
3.6
Other areas of legal work, including conveyancing and extraction of a grant of probate/letters of administration are reserved to solicitors and selected others under the CLSA90. However, there is no requirement for solicitors to attain specific qualifications prior to practising in those areas.
3.7
The current approach has a potential further weakness in that it is a one-off qualification, with no requirement for periodic re-validation. This would need to be addressed in any new approach.
3.8
It is right therefore that we consider the extent to which the public could be protected and the rule of law upheld more proportionately and consistent with quality assurance mechanisms already in place.
4. Options for reform
4.1
Under Rule 1 of the Solicitors' Practice Rules 1990 solicitors are required not to do anything that would compromise or impair their proper standard of work. The new Code of Conduct will deal with this more succinctly at Rule 1.06:
You must act only when you are able to provide a competent service.
4.2
Any options for reform would need to be considered against that underpinning Rule.
4.3
If it is accepted that the current position is not justifiable on regulatory grounds, other options could be explored, aimed at achieving quality assurance at appropriate standards, in a proportionate and consistent manner. Options include
- maintaining the status quo, but with a more proportionate system of accreditation
- relying on the professional duty on solicitors to act only within their competence, but offering a non-mandatory accreditation scheme
- relying on the professional duty only
4.4 A modified status quo
4.4.1
The current restrictions on solicitors undertaking higher courts advocacy would remain, but instead of requiring attainment of a one-off qualification, solicitors would be required to demonstrate achievement of appropriate standards, through a form of accreditation, in line with other schemes offered by the SRA. Accreditation would be subject to periodic re-accreditation, perhaps every five years.
4.4.2 Advantages
This approach would have the advantage of compulsory accreditation, supported by periodic re-validation to provide ongoing assurances of professional performance against the SRA's standards.
4.4.3 Disadvantages
Although a compulsory accreditation scheme might be viewed as more proportionate, arguably, this approach would remain disproportionate and inconsistent with the approach taken in other areas of reserved activities.
4.5 Non-mandatory accreditation
4.5.1
The current restrictions would be removed and replaced by a non-mandatory accreditation scheme and periodic re-accreditation. Such a scheme would be supported by the professional duty on solicitors to act within their competence. A clear message could be given that solicitors routinely exercising higher rights of audience would be expected to be accredited, but incidental appearances in the higher courts may not warrant accreditation.
4.5.2
There are a number of possible variants to this approach:
- a scheme designed only for advocacy in the higher courts
- a two-tier scheme, with a basic level for advocacy in the lower courts, and a more advanced level for the higher courts
- no specific scheme for advocacy, but embed the advocacy elements into schemes devised for areas of practice, such as crime, family, etc
- no specific scheme for advocacy but offer advocacy elements as a bolt-on to schemes devised for areas of practice
4.5.3
It is possible that the discussions about implementing Lord Carter's recommendation for a quality assurance system for advocates (paragraph 2.6 above) might produce a scheme that would be a basis for non-mandatory accreditation of solicitor and barrister advocates. We will be open to working with and supporting such a scheme if it is developed in consultation with practitioners and in line with the principles of good regulation. In particular, it should
- have clearly articulated objectives in support of the public interest and the effective administration of justice
- be based on competencies that are relevant and measurable through the assessment system that is adopted
- include an assessment system and procedural framework that is transparent, fair and consistent in its outcomes
4.5.4 Advantages
Any of the schemes outlined above could be designed to provide quality assurance of achievement against standards set by us, in consultation with our stakeholders. Each would afford ongoing assurance of performance against the standards through re-accreditation.
Any of the proposed schemes would meet the principles of proportionality and are consistent with the approach taken in other areas of practice.
4.5.5 Disadvantages
It would remain open to unaccredited practitioners to appear in the higher – and lower – courts.
4.6 The professional duty
4.6.1
Under this approach, the current restrictions would be removed and there would be no accreditation scheme. Instead we would rely on the professional duty for solicitors to act only when competent to do so, referring matters outside of their competence either to in-house specialist advocates, or to independent barristers or solicitor-advocates.
4.6.2 Advantages
The advantages of this approach would be that greater responsibility is placed on individual solicitors and their employers to ensure that the solicitor does not work outside his or her competence. This would be regarded as 'light-touch' regulation, with the SRA acting only in the event of regulatory risks coming to light.
4.6.3 Disadvantages
It would be harder for users of legal services to recognise a quality assured advocate.
This approach may also give rise to solicitors who are not competent to do so, appearing in the higher courts, to the detriment of their clients and the rule of law.
It is more difficult to use Rule 1 in isolation, as a quality control mechanism.
Questionnaire
(The questionnaire is included below for information purposes only. The deadline for submission of responses was 12 April 2007.)
Question 1
Under Practice Rule 1, solicitors are required to work only within their competence.
Do you think that standards are secured by solicitors advocating in the lower courts by relying upon this general requirement?
- Yes
- No
Please state your reasons.
Question 2
Under Practice Rule 1, solicitors are required to work only within their competence.
Do you think that standards could be secured by solicitors advocating in the higher courts by relying upon this general requirement?
- Yes
- No
Please state your reasons.
(Respondents who answered "No" to Question 2 were asked Question 3. Respondents who answered "Yes" to Question 2 were not asked Question 3 and, instead, went directly to Question 4.)
Question 3
Why do you believe advocacy different from other areas of reserved rights?
Question 4
What do you consider to be the main differences between advocacy in the lower courts and tribunals and the higher courts?
You can select more than one option. If you do not believe there are any significant differences, please select only the second-to-last option.
- Different/additional behaviours are required.
- Different/additional skills are required.
- Different/additional levels of knowledge are required.
- There are no significant differences.
- Other, please specify
(All respondents, except those whose answer to Question 4 was "There are no significant differences", were asked a follow-up question.)
In view of your answer(s) to the immediately preceding question, please outline what you believe to be the different/additional behaviours/skills/knowledge needed for advocacy in the higher courts.
Question 5
Do you think the current restrictions on advocacy rights should be retained?
- Yes
- No
Please state your reasons.
(Respondents who answered "Yes" to Question 5 were not shown any further questions, apart from Question 13.)
Question 6
Should there be any other form of quality assurance for clients and the proper administration of justice?
- Yes
- No
Please state your reasons.
(Respondents who answered "No" to Question 6 were not shown any further questions, apart from Question 13.)
Question 7
What type of quality assurance mechanism should be put in place?
Question 8
To what should this quality assurance mechanism be applied?
- Advocacy in the lower courts
- Advocacy in the higher courts
- Both
Please state your reasons.
Question 9
If a quality assurance mechanism is introduced, this should be based on standards of...
You can select more than one option.
- Behaviour
- Skills
- Knowledge
Please state your reasons.
Question 10
If a quality assurance mechanism is introduced, this should be subject to periodic (e.g. every five years) revalidation of standards of...
You can select more than one option.
- Behaviour
- Skills
- Knowledge
Please state your reasons.
Question 11
If a quality assurance mechanism is introduced, should it cover advocacy in all areas of law, or should options be made available limited to a specific area of practice (e.g. crime, family)?
Question 12
If a quality assurance mechanism is introduced, should it cover advocacy only, or should it be an integral part of, or an optional element of, a scheme specific to an area of practice (e.g. family, crime)?
- Advocacy only
- Integral part of a specific scheme
- Optional element of a specific scheme
Please state your reasons.
Question 13
Please enter any other comments you want to make.