Closed Consultation

Requirements for lawyers qualifying as solicitors in England and Wales

1 July 2008

This consultation is now closed.

A consultation on proposed changes to the arrangements for qualified lawyers from outside England and Wales, and members of the English Bar, seeking to become solicitors in England and Wales ended on 14 April 2008.

The SRA is committed to enabling lawyers qualified outside of England and Wales to qualify as solicitors, so long as they can satisfy us that they could practise effectively.

Guidance, revised in the light of the consultation responses, was agreed by the SRA's Board on 26 June and will apply to applications for a certificate of eligibility received on or after 1 September 2008.

The revised guidance clarifies the way the SRA considers

• experience requirements, and
• requests for exemptions from the Qualified Lawyers Transfer Test.

You can access the papers that the SRA Board considered below.

• Analysis of responses to the "Requirements for lawyers qualifying as solicitors in England and Wales" consultation (PDF 168K)

For reference purposes, the consultation paper appears below.

Contents

• Why we are consulting
• Introduction
• Background
  • Qualified Lawyers Transfer Regulations (QLTR)
  • Context of the consultation
• Proposals
  • Experience requirement
  • Exemption from Qualified Lawyers Transfer Test (QLTT) exams
  • Providers of the QLTT
• Impact of the proposed changes
• Arguments against the interim measures
• Experience of the QLTR process
• Summary of consultation questions

Why we are consulting

The current qualified lawyers transfer system has significant weaknesses:

• The guidelines are vague in some areas, leading to the danger of inconsistent decision making, and raising false expectations.
• There is currently no explicit requirement for non-EU applicants to have any experience at all of practice in the law of England and Wales: This is hard to justify in the public interest, and may place overseas lawyers in a vulnerable position when they start to practise.
• The system is currently open to a restricted list of countries, reflecting historical links with the UK legal system. This is unfair.
• The system is mismatched with the requirements for solicitors qualifying under the domestic route in England and Wales.

The SRA is undertaking a full review of the transfer requirements for qualified lawyers. We are doing so for a number of reasons, which are set out below:

• The SRA's responsibility to the public for setting and assessing standards for entry to the profession extends to those who qualify on the basis of an existing qualification (e.g. qualified in another jurisdiction). The significant percentage of solicitors who qualify using the transfer route (approximately 20 per cent of new admissions each year) reinforces the need to ensure that transferees' competence to practise as solicitors in England and Wales is equivalent to that required under the home route.
• Not all jurisdictions are covered by the current regulations, the Qualified Lawyers Transfer Regulations (QLTR).
• Developments have occurred within the jurisdictions covered by the regulations, both in their legal systems and in their qualification schemes, since the QLTR were introduced.
• There are concerns that the QLTR enable individuals to bypass the requirements of the Training Regulations 1990, which set out the domestic route to qualification.
• Statistical indications suggest that transferees are more likely to be the subject of professional disciplinary sanctions than domestic qualifiers. (The reasons for this are unclear, and the SRA is commissioning an independent review.)
• There is evidence that the areas of practice in which transferees are most likely to work do not align with the subjects assessed by the Qualified Lawyers Transfer Test (QLTT). For example, business law is the area of practice most frequently cited as their area of work by solicitors who have qualified under the QLTR, although this is not a subject of the QLTT.

We expect that it will be at least two years before any major changes can be made. In the mean time, we are proposing that interim measures should be introduced to ensure that all who qualify as solicitors have the knowledge and skills needed to practise competently and effectively as a solicitor in England and Wales. This consultation concerns these proposed interim measures.

Introduction

The SRA regulates solicitors in England and Wales. One of our responsibilities is to set the standards of qualification. There are two main routes to qualification.

Most people currently qualify by

• passing a law degree or an equivalent course, followed by
• a one-year course and exams in professional legal skills and practice (a Legal Practice Course) and, then,
• two years working under the supervision of an experienced solicitor qualified in England and Wales, during which they must work in at least three different areas of law, gain experience of both contentious and non-contentious work and complete a Professional Skills Course (a training contract>).

This is described as the "domestic route" in this paper.

However, around 20 per cent of solicitors who qualify each year follow a shorter route to qualification, because they have already qualified as a lawyer in certain other jurisdictions and countries or because they have already qualified as a barrister in England and Wales.

People who are able to qualify in this way are required to

• pass between one and four exams (as specified by the regulations) that make up the QLTT, unless they are granted a total exemption from all exams, and
• show that they have two years' experience of legal practice.

The SRA invited feedback by 31 January on some proposed interim measures intended to strengthen the operation of the current regulations. However, the number of responses was disappointing, and the feedback that was received revealed some significant concerns, and some misunderstandings about the proposed requirements. Therefore, we are extending the consultation period and publishing this paper to elicit wider input into our decision making and to aid understanding about the proposed changes.

The consultation is aimed at

• all who have an interest in the delivery of legal services, including consumers and bodies representing consumers,
• all who practise as, or employ, solicitors, and
• all who are planning to qualify as a solicitor, regardless of the route by which they plan to qualify.

Background

Qualified Lawyers Transfer Regulations

The Qualified Lawyers Transfer Regulations (QLTR) were introduced in 1990. The regulations provide an opportunity for lawyers from a range of countries to qualify in a "fast-track" way as a solicitor in England and Wales. The regulations list the jurisdictions whose lawyers are able to take advantage of this qualification route:

Barristers qualified in England and Wales and lawyers qualified in Scotland and Northern Ireland are also able to take advantage of the regulations.

The qualification requirements for European lawyers are determined by an EU directive. That directive precludes the SRA from placing an experience requirement on EU applicants applying under the provisions of the directive. EU applicants can be required to pass a test, with the test requirements in each case being determined on an individual basis. The guidance that is the subject of this consultation does not, therefore, apply to EU applicants who, in any event, make up only a small proportion of the transfer applications received each year.

Leaving aside the European countries, the legal systems of the jurisdictions covered by the regulations are based on the common law—that is, their legal systems reflect the legal system of England and Wales.

The Law Society's annual statistical reports have tracked the numbers who qualify as solicitors using the transfer route. The Law Society's 2007 annual report, for example, records that the highest proportion of solicitors who qualified under the QLTR during 2006/2007 originally qualified in either Australia or New Zealand—270 people.

A further analysis of records held by the SRA has shown that during the period 1995–2005

• 19 per cent of solicitors qualified by way of the QLTR,
• 16 per cent of solicitors who were admitted had first qualified in jurisdictions other than England and Wales,
• 2.6 per cent had first been called to the Bar in England and Wales , and
• about 25 per cent of transferees admitted during this time have never taken out practising certificates. Therefore, they have not practised as solicitors.

Context of the consultation

The SRA's principal duty is to regulate the solicitors' profession in a way that promotes and protects the interests of solicitors' clients and the public more generally. We are committed to doing so in a way that is fair and proportionate.

We have been reviewing and are reforming the domestic route to qualification, so people can be confident that all those qualifying as solicitors in this way have the knowledge, skills and wider attributes needed to work professionally and effectively as solicitors.

A full review of the QLTR is also about to start. However, a full review involving consultation will take some time. Any new regulations will then need to be considered in accordance with the requirements of the Courts and Legal Services Act or the Legal Services Act if the relevant provisions are then in force.

We are concerned about the way the current regulations are working:

• Decisions about the exact qualification requirements for individual applicants are not always consistent, because of the scope for interpretation in the regulations and existing guidance.
• There is evidence that a disproportionately high number of solicitors who qualified using the "fast-track" route are the subject of professional disciplinary procedures and sanctions when compared with solicitors who have qualified using the domestic route. The reasons for this are unclear and are the subject of further analysis.
• There have been allegations of unfair disparities between the different providers in the standards which are required to pass the QLTT.

These various concerns go to the heart of the SRA's responsibilities as a regulator in the public interest. Therefore, we are considering some interim measures to address these concerns ahead of the outcome of the full review.

Proposals

The SRA is proposing to issue revised guidance on

• the nature of the experience that non-EU qualified lawyers will be expected to have before they can qualify as solicitors in England and Wales, and
• the circumstances in which they should be given an exemption from the QLTT examinations.

In addition, we are proposing

• a temporary hold on the number of organisations that can set and mark the QLTT and on the locations in which the test can be undertaken.

Applications for certificates of eligibility to take the QLTT received before any implementation of the proposed guidance will be determined against existing guidelines—see Completing the application to transfer under the Qualified Lawyers Transfer Regulations 1990, Qualified Lawyers Transfer Test specification and Qualified Lawyers Transfer Regulations 1990: Experience requirement. Following consultation, if we decide to implement the proposed guidance, we will publish an implementation date. Applications received on or after this date would be subject to the new guidance.

Experience requirement

The QLTR allow the SRA to require non-EU applicants to have completed two years' experience before they can be admitted as a solicitor in England and Wales . The regulations give us discretion to decide what type of experience is acceptable. However, the regulations specifically require that regard is had to the nature and extent of the applicant's practical experience of the law of England and Wales.

The current guidance (see page 9 of Completing the application to transfer under the Qualified Lawyers Transfer Regulations 1990) requires that applicants have, within the previous five years,

• worked in legal practice for at least two years that is consistent with service under a training contract (see Training trainee solicitors: the SRA requirements),
• gained experience of three distinct areas of the common law within the five years prior to their application, and
• gained experience of both contentious and non contentious work for a period of no less than three months in each of these types of practice.

Therefore, the current guidance is not specific about where, or the legal system within which, the experience must be gained. In contrast, trainee solicitors serving under a training contract in order to qualify in England and Wales must work within the legal system of England and Wales, although they are not required to be physically located there. They must be adequately supervised and their work and training must be overseen by a training principal who must be a solicitor who has qualified in England and Wales, who holds a current practising certificate and who has held four consecutive practising certificates immediately preceding the current one.

We consider that the current guidance is defective in two principal ways. First, its vagueness gives rise to the danger of inconsistent and unfair decisions. Second, the absence of an explicit requirement to have experience of the law of England and Wales appears at serious odds with the requirement for those qualifying in England and Wales using the domestic route. While lawyers already qualified in other jurisdictions should not be expected to meet the same requirements as trainees in England and Wales, some experience of the law of England and Wales would appear to be a sensible requirement—both to protect clients and to prepare the applicant for practice.

The draft guidance would address existing ambiguities. It would make clear that, within the five years prior to their application or admission as a solicitor, applicants would normally need to have had two years' experience (or the equivalent) of legal practice, of which

• one year (or the equivalent) was obtained working within the law of England and Wales under the general supervision of an experienced England-and-Wales-qualified solicitor (but not necessarily in England and Wales ), and
• one year (or the equivalent) was obtained working within a legal system based on the common law (either that of England and Wales or the legal system of another common law jurisdiction),

and during which applicants

• had gained experience of three different areas of law and of contentious and non contentious work.

The requirements for transferring lawyers would be significantly less than those for trainee solicitors; employing firms would not be subject to the training contract and authorised training establishment requirements.

Your views are sought on the draft guidance (see questions 1–4).

Exemption from QLTT exams

The QLTR set out which exams lawyers from each jurisdiction are normally required to pass before they can be admitted as a solicitor in England and Wales . The requirements were decided when the regulations were introduced, and were based on a comparison between the legal systems and qualification requirements in each jurisdiction and those in England and Wales.

The topics covered by the exams are as follows:

• Professional conduct and accounts
• Litigation
• Property
• The principles of common law (an oral exam)

Applicants can apply for exemption from the normal exam requirements set for their jurisdiction. Currently, claims for exemptions are based on the nature and extent of the applicants' experience, the qualifications they have taken or a combination of both. Each application is considered individually. Again, this can lead to inconsistent decision making and requests for review.

It is proposed that exemptions should be granted only if the applicant has passed within the previous five years an examination or other assessment covering the same area of law and practice (see draft guidance).

Your views are sought on this approach (see Question 5).

Providers of the QLTT

There are currently five providers of the QLTT authorised by the SRA. Some of the providers deliver the test in different countries. In such cases, candidates sit the same papers, at the same time, as candidates sitting the test in the United Kingdom. The papers, wherever sat, are marked by the same examiners, overseen by the same examination board. There have been allegations that some providers are more generous in their marking than others, leading to concerns about inconsistent standards.

The SRA is putting measures in place to address these concerns. For example, we are introducing a more rigorous authorisation procedure and strengthened external examining arrangements. To allow for these measures to be put in place, we propose that, until further notice,

• no more providers should be authorised, and
• existing providers should not be allowed to provide the test in further locations.

This measure would not affect existing authorisations, and the QLTT would continue to be available in different countries as well as in the United Kingdom .

Comments are sought on the reasonableness of this measure (see Question 6).

Impact of the proposed changes

Careful consideration has been given to the impact of the proposed changes. We accept that, for some potential applicants, the experience requirement might be more difficult to satisfy than would have been the case had they been permitted to qualify without the need to demonstrate any experience of working within the law of England and Wales. We acknowledge that the impact could be felt most strongly by applicants who are outside of England and Wales.

We believe, however, that these proposals are justifiable as a proportionate means to achieve the legitimate aim of protecting the public interest in this field, and in moving towards consistent standards between those qualifying in England and Wales, and those transferring from other jurisdictions (bearing in mind that qualified overseas lawyers not covered by the QLTR arrangements are expected to qualify in England and Wales using the domestic arrangements).

Once qualified, no distinction is made between solicitors, however they have qualified. Clients must assume that a solicitor who has qualified by way of transfer has an understanding of law and legal practice in England and Wales equivalent to that of a solicitor who qualified using the standard route. Clients should not be expected to distinguish between solicitors who have qualified in different ways.

The SRA's aim must be to ensure that all who qualify as solicitors of the Supreme Court of England and Wales are competent to practise. Practical experience has always been a feature of the standard route to qualification. Much weight has traditionally been placed on an individual's completion of two years' supervised practice in the law of England and Wales.

Requiring non-EU transferring lawyers to have had one year of such experience, albeit not undertaken in England and Wales, is considered by the SRA to be a proportionate requirement. Unless and until the regulations themselves are changed, we are not able to put in place alternative measures that might help to ensure transferring lawyers are familiar with England and Wales' solicitors' practices.

Applicants can attempt the QLTT without attending any prescribed course. There are many opportunities each year to sit the QLTT. An applicant should be able to claim an exemption from one of the exams only if they have current knowledge of all of the aspects of law and practice that would be assessed by the exam. The proposal that exemptions should be granted only if an applicant has, within the last five years, passed an equivalent assessment should not have a significant impact on an applicant whose knowledge of the subject to be assessed is full and current. An applicant who has not passed such an assessment would simply need to demonstrate their knowledge by passing the QLTT.

The United Kingdom operates a liberal regime with regard to lawyers' rights to practise in the country. Lawyers qualified in other jurisdictions may practise here under their home title.

Many overseas-qualified lawyers are recruited each year to work in solicitors' firms in England and Wales or in their overseas office. Some choose to re-qualify in England and Wales, while others do not. In such firms, there tend to be few areas of work for which qualification as a solicitor is an essential requirement.

We are committed to promoting equality and diversity in all our work, and we are keen to ensure that our policies and regulations are fair to all and comply with our public duties. We have considered the impact the proposed interim measures might have on applicants. We would therefore welcome your views and encourage you to tell us what impact the proposed interim changes might have on people qualifying as solicitors using the transfer or the domestic route. Feedback will be used to inform our initial impact assessment and our decisions (see Question 7). A full impact assessment will be undertaken in the context of the fundamental review of the transfer arrangements.

Arguments against the interim measures

We are aware that some stakeholders oppose the proposed interim measures. Their arguments appear to be based on a number of concerns:

• Overseas lawyers will be less willing to work in England and Wales if they are required to obtain a year's experience of working with the law of England and Wales before they can qualify as a solicitor, depriving firms of a resource that they currently value.
• A requirement on firms to supervise an overseas lawyer and, if necessary, ensure they gain broader experience will be unduly burdensome and inefficient.
• Requiring overseas lawyers to have experience of the law of England and Wales before they can be admitted as solicitors will indirectly discriminate against lawyers from certain countries.
• Experienced lawyers will not learn from being supervised by a solicitor qualified in England and Wales and will find the requirement insulting.
• Other countries might, in response to these measures, make it more difficult for solicitors qualified in England and Wales to qualify or practise.
• No changes should be made until the full review of the arrangements has been completed.

We have addressed some of these arguments elsewhere in this document, particularly the concerns about the proportionality of our proposals. While we are alert to the profitability and competitiveness of solicitors' practices and their opportunities to establish in other countries, our primary concern is to ensure public confidence in solicitors' competence to advise and represent their clients effectively.

We believe that clients expect solicitors qualified in England and Wales to have had some exposure to the way in which the law is practised in this jurisdiction. We believe such exposure helps to develop transferring lawyers' understanding of the professional responsibilities on solicitors and of the law and the legal system on which they would be qualified to advise. While there are many common features of legal practice across different jurisdictions, law and practice in England and Wales is distinct, and transferees should experience at least some of the distinctive elements before they qualify as a solicitor.

Some of the arguments against the proposed interim measures appear to be based on misunderstandings:

• The experience would need to be gained in England and Wales.
• Transferring lawyers would need to be deployed and supervised like trainee solicitors.
• There is currently no experience requirement placed on transferees.

These assumptions are incorrect.

We would welcome your views on all issues raised in this paper.

Experience of the QLTR process

It will help us analyse responses to the consultation if we know whether you have direct experience of the QLTR scheme. We will be undertaking research that will require feedback from QLTR applicants and solicitors who have qualified using the QLTR route. We would like to identify people willing to participate in this research (see Question 8).

Summary of consultation questions

Question 1(a)

Should all solicitors admitted in England and Wales have had some experience of working within English and Welsh law, however they qualify?

Question 1(b)

If you answered "Yes" to Question 1(a), what should be the length of this experience?

Question 2(a)

Should all solicitors admitted in England and Wales have experience of different types of legal work, gained either in the law of England and Wales or in another common law system?

Question 2(b)

If you answered "Yes" to Question 2(a), what experience of different types of legal work should be required?

Question 3

How should required prior experience be supervised? For example, should supervision be by an experienced solicitor? Should it align with the supervision required for trainee solicitors? Should it be more general?

Question 4

Do you agree that the draft guidance is a reasonable and proportionate way of ensuring that all transferring solicitors are fit to practise?

Question 5

Should exemptions be granted from part or parts of the QLTT?

Question 6

Is it reasonable to introduce a moratorium on the SRA's authorisation of new test providers and locations ahead of measures to enable greater assurances to be given about the standard of all QLTTs?

Question 7

What are your views on the possible equality impact of the guidance?

Question 8

Have you qualified as a solicitor using the QLTR route to qualification? If so, in which jurisdiction did you originally qualify? If not, are you considering making an application using the QLTR route to qualification? If you are considering making an application, in which jurisdiction are you qualified? Would you be willing to contribute to future research that will inform the full review of the transfer scheme?

Downloadable document(s)

• Analysis of consultation responses (PDF 168K)