C 10 2006 2 Item 16
AMENDMENTS TO THE HIGHER COURTS
QUALIFICATION REGULATIONS 2000 as amended
Summary
On the recommendation of the Regulation Board, this paper seeks approval from
Council of an amendment to the Higher Courts Qualification Regulations by
extending the deadline for receipt of applications for higher rights of audience
accreditation from end-2006 to 31 December 2008. This will enable the Regulation
Board to undertake a full review, including formal and informal consultation, of the
ongoing necessity for solicitors to attain a separate accreditation to appear in the
Higher Courts. The review will take place during 2006/07 and any new proposals
would require further rule change. The extension of the existing routes to end-2008
is a precautionary measure to mitigate against possible delay during the transitional
period following the anticipated passage of the Legal Services Bill and establishment
of the Legal Services Board.
Recommendation
The Regulation Board recommends that the Council approve the following
amendments to the Higher Courts Qualification Regulations 2000:
Regulation 6(3) is amended to read:
‘Applications under this Regulation must be received by the Society by 31st
December 2008’; and
Regulation 7(3) is amended to read:
‘Applications under this Regulation must be received by the Society by the
31st December 2008’.
Financial and Resourcing implications
There are no budgetary implications.
Equality and Diversity implications
If the amendment is approved, the opportunity to apply for the qualification under the
accreditation or exemption route will continue to be available to all solicitors who are
suitably experienced. No equality and diversity implications have been identified.
Freedom of Information
This paper is public.
Consultation
The recommendations have been approved by the Regulation Board. Discussions
with the Department for Constitutional Affairs (DCA) suggest that they would
welcome a full review of the rights of audience qualification and support the proposed
amendment in the interim period.
Due to the urgency and interim nature of the recommended changes, there has been
only informal consultation with the Law Society's professional body.
Author of Report
Hilary Lloyd, Acting Director of Regulation Standards
Date of Report
22 September 2006
AMENDMENTS TO THE HIGHER COURTS
QUALIFICATION REGULATIONS 2000 as amended
Issues
Background
1.
The Higher Courts Qualification Regulations were approved in 2000. They
provide 3 routes to the higher courts qualification for solicitors and registered
European lawyers (RELs): the development route based on compulsory
training and assessment and the completion of a portfolio of experience with a
mentor; the accreditation route involving only completion of an advocacy
assessment for individuals with some experience of proceedings in the higher
courts; and the exemption route for individuals with experience of advocacy in
the higher courts.
2.
The purpose of the accreditation and exemption routes was to provide an
opportunity for experienced solicitors and RELs to apply for the higher courts
qualification on the basis of their experience without the need to undertake the
development route. It was intended that individuals would be given a specific
time period within which to apply under these routes after which time the only
route to qualification would be the development route. The deadline for receipt
of applications under this route was initially set at 31 October 2005.
3.
In 2005, representations were received from the Crown Prosecution Service
(CPS), supported by the Director of Public Prosecutions, to extend the deadline
for the receipt of applications under the exemption and accreditation routes. As
a result, an application for an amendment to the Regulations was approved by
the DCA, extending the exemption and accreditation routes until 31 December
2006. The extension was granted to allow time to conduct a proper review of
the rights of audience qualification.
The current context
4.
The DCA commissioned a report in July 2005 into the potential risks of external
ownership and regulatory responses in the context of the Clementi report. That
report suggested that “it is difficult to see why a solicitor with considerable
experience in lower courts needs additional training to become a solicitor
advocate”. In the light of this report, the DCA met with staff in Regulation to
discuss the rights of audience qualification and to encourage a fundamental
review of the requirement for solicitors to gain an additional qualification in order
to exercise their full rights of audience.
5.
The CPS has made representations to the LSRB that termination of the
exemption and accreditation routes at the end of 2006 would obstruct their
efforts to develop more in-house advocacy and would particularly disadvantage
solicitors employed by the CPS. Bridget Prentice MP, Parliamentary Under
Secretary of State, has also written to the Chair of the Regulation Board
requesting special exemptions from the regulations for CPS staff.
6.
The Regulation Board has considered various options for reviewing the rights of
audience qualification. It supports the DCA’s desire to remove any
unnecessary restrictive aspects of the Higher Courts Qualification Regulations
and to provide flexibility for solicitors provided it is satisfied that consumer
interests are protected. The Board is planning to carry out a fundamental
review of rights of audience and in particular to explore the regulatory impact of
removing the mandatory qualification for solicitors wishing to gain rights of
audience. It will not be possible to conclude this review before the deadline for
receipt of applications under the accreditation and exemption routes at the end
of 2006. In view of this, the Board is recommending an amendment to the
Regulations to extend these routes to qualification to allow time to complete the
review.
Timing issues
7.
If short-term changes are not implemented before the end of December 2006,
all solicitors seeking the rights of audience qualification will be required to follow
the development route until any new regulations are introduced. The DCA has
indicated that it will facilitate a speedy response to any interim request by the
LSRB for amendment to the Regulations. Any further regulatory changes will
be proposed in 2007 following full consultation. It is recommended that the
interim changes extend the accreditation and exemption routes to the end of
2008 in case there are delays in approving any further changes to the
Regulations as a result of the appointment of the Legal Services Board.
Recommendation
8.
Recommendation
It is recommended that the Council approve the following amendments to the
Higher Rights of Audience Regulations:
Regulation 6(3) is amended to read:
‘Applications under this Regulation must be received by the Society by
31st December 2008’; and
Regulation 7(3) is amended to read:
‘Applications under this Regulation must be received by the Society by the
31st December 2008’.
Annex 1
Draft amended regulations
Higher Courts Qualification Regulations 2000
Made on the 13th day of July 2000 by the Council of the Law Society with the
approval of the Lord Chancellor under Section 27 of the Courts and Legal Services
Act 1990 and Section 2 of the Solicitors Act 1974, amended with the approval of the
Lord Chancellor XX 2006.
1.
Introductory
The purpose of these regulations is to establish a qualification for solicitors and
registered European lawyers wishing to exercise extended rights of audience in the
higher courts. The aim of the scheme is to ensure that they are competent to
undertake advocacy in those proceedings in which they may exercise rights of
audience in accordance with these regulations.
These regulations will come into force on such date as the Council may determine,
on which date The Higher Courts Qualification Regulations 1998 (“the 1998
Regulations”) shall cease to have effect.
Subject to regulation 10, in these regulations “higher courts advocacy qualification”
shall mean one of the qualifications referred to in regulation 3 to exercise extended
rights of audience in the higher courts.
In these regulations "comparable jurisdiction" shall include Scotland, Northern
Ireland, Republic of Ireland and those jurisdictions listed in paragraphs 1 and 2 of the
Schedule to the Qualified Lawyers Transfer Regulations 1990.
In these regulations “Legal Practice Course” and “continuing professional
development year” shall have the meanings set out in the Training Regulations 1990.
In these regulations “the 1992 Regulations” shall mean The Higher Courts
Qualification Regulations 1992.
In these regulations “registered European lawyers” shall mean persons registered
with the Society under the European Communities (Lawyer’s Practice) Regulations
2000.
2.
Rights of audience
Under Section 31(2) of the Courts and Legal Services Act 1990, solicitors are
deemed to have been granted rights of audience in all courts and in all proceedings.
By virtue of Regulations 6 and 11 of the European Communities (Lawyer’s Practice)
Regulations 2000, registered European lawyers are deemed to have been granted
rights of audience in all courts and in all proceedings.
Subject to regulation 10, no solicitor or registered European lawyer is entitled to
exercise any right of audience other than a right of audience of the type which
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solicitors had immediately before 7th December 1989 unless he or she holds a
higher courts advocacy qualification under these regulations entitling him or her to
exercise that right of audience.
3.
Qualifications to exercise extended rights of audience
(1)
The Society may grant one of the following qualifications to a solicitor or
registered European lawyer who meets the requirements of these regulations:

Higher Courts (All Proceedings) Qualification which shall entitle the
solicitor or registered European lawyer to exercise rights of audience in all
proceedings in the higher courts.

Higher Courts (Civil Proceedings) Qualification which shall entitle the
solicitor or registered European lawyer to exercise rights of audience in all
civil proceedings in the higher courts including judicial review proceedings in
any court arising from any civil cause.

Higher Courts (Criminal Proceedings) Qualification which shall entitle the
solicitor or registered European lawyer to exercise rights of audience in all
criminal proceedings in the higher courts and judicial review proceedings in
any court arising from any criminal cause.
subject always to the rules and principles of professional conduct applicable
to solicitors and registered European lawyers.
(2)
Those solicitors and registered European lawyers who have been granted the
Higher Courts (All Proceedings) Qualification, the Higher Courts (Civil
Proceedings) Qualification and the Higher Courts (Criminal Proceedings)
qualification by the Society under the 1992 Regulations and the 1998
Regulations shall be deemed to have been granted the equivalent
qualification under paragraph (1) of this regulation.
4.
Qualifying to exercise extended rights of audience
(1)
Solicitors and registered European lawyers applying for one of the higher
courts advocacy qualifications must demonstrate to the satisfaction of the
Society that they are competent to undertake advocacy in the proceedings in
relation to which they have applied by satisfying the Society:
Development route
(a)
that they have undertaken training, assessment and experience in
accordance with Regulation 5; or
Accreditation route
(b)
that they have practised as lawyers for at least three years and that they have
at least three years’ appropriate experience of litigation in the higher courts of
England and Wales or of a comparable jurisdiction or of a jurisdiction listed in
Article 1 of the EC Parliament and Council Directive 98/5/EC, and have
satisfied any conditions and have undertaken assessment and any further
steps specified by the Society under Regulation 6; or
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Exemption route
(c)
that they have practised as lawyers for at least three years and that they have
appropriate experience of the higher courts of England and Wales or of a
comparable jurisdiction or of a jurisdiction listed in Article 1 of the EC
Parliament and Council Directive 98/5/EC and are suitably experienced and
qualified as provided for by regulation 7; or
Qualifications gained in another jurisdiction
(d)
that they have appropriate qualifications and have undertaken any further
step(s) specified by the Society under regulation 8.
(2)
Before being granted a higher courts advocacy qualification applicants must:
(a)
supply the Society with at least one reference as to the nature and
extent of their litigation and advocacy experience from those whose
standing as a member of the judiciary, the court service or the legal
profession would enable them to offer informed opinions; and
(b)
attend for interview if required to do so by the Society.
(3)
Paragraphs (1) and (2) of this regulation do not apply to those persons to
whom regulation 10 applies.
5.
Development route
(1)
The Higher Courts (All Proceedings) Qualification may be granted to solicitors
and to registered European lawyers who have:
(2)
(a)
successfully undertaken training and assessment in procedure,
evidence and ethics applicable to the higher courts, as specified by
the Society; and
(b)
successfully undertaken training and assessment in advocacy skills
applicable to the higher courts, as specified by the Society; and
(c)
had such experience of litigation and advocacy over a period of 12
months as the Society shall specify and evidenced in such a way as
the Society shall prescribe.
In the case of a solicitor, the training, assessment and up to six months of the
experience set out in regulation 5(1) may be undertaken before admission as
a solicitor provided that:

it is undertaken after successful completion of the Legal Practice Course;
and

the experience requirement is satisfied during a training contract or
following admission as a solicitor; and

at least six months of the experience requirement takes place following
admission; and
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
the training, assessment and experience set out in regulation 5(1) take
place in the five years preceding the application.
6.
Accreditation route
(1)
A higher courts advocacy qualification in those proceedings in which they are
seeking to exercise rights of audience may be granted to solicitors and to
registered European lawyers who have:
(a)
practised as lawyers for at least three years and;
(b)
satisfied the Society that by reason of their experience (which must be
at least three years) of litigation in the higher courts of England and
Wales or of a comparable jurisdiction or of a jurisdiction listed in
Article 1 of the EC Parliament and Council Directive 98/5/EC, they
have acquired a sound understanding of the procedure, evidence and
ethics applicable in those proceedings for which they seek to exercise
rights of audience; and
(c)
complied with any steps or conditions specified by the Society,
including undertaking any training; and
(d)
passed the assessment in advocacy skills (within the timescale
specified by the Society, if any) applicable to those proceedings in
which they are seeking rights of audience specified by the Society.
(2)
In assessing an applicant's understanding of the procedure, evidence and
ethics for the purposes of regulation 6(1) the Society shall have regard to the
applicant's recent experience of litigation and advocacy, any relevant training
courses undertaken and assessments passed by the applicant and any
advocacy observed by the applicant.
(3)
Applications under this regulation must be received by the Society before 31st
December 2006 (suggested change to 2008).
7.
Exemption route
(1)
A higher courts advocacy qualification in those proceedings in which they are
seeking to exercise rights of audience may be granted to those who have
practised as lawyers for at least three years and have satisfied the Society
that they have advocacy or judicial experience in the higher courts of England
and Wales or of a comparable jurisdiction or of a jurisdiction listed in Article 1
of the EC Parliament and Council Directive 98/5/EC and are suitably
experienced and qualified to exercise rights of audience before the higher
courts in the proceedings in which the qualification for which they have
applied would entitle them to appear.
(2)
Solicitors or registered European lawyers who fail to satisfy the Society in
accordance with paragraph (1) above may have their application considered
under Regulation 6.
(3)
Applications under this regulation must be received by the Society before 31st
December 2006 (suggested change to 2008).
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8.
Qualification gained in another jurisdiction
(1)
After 31st October 2005, a solicitor or registered European lawyer may apply
for a qualification to exercise rights of audience in all proceedings in the
higher courts relying on qualification(s) gained in any comparable jurisdiction
or a jurisdiction listed in Article 1 of the EC Parliament and Council Directive
98/5/EC.
(2)
Each application will be considered on its merits by the Society which may
require the applicant to undertake such steps as it may specify in order to
gain the qualification.
9.
Former barristers etc
(1)
This regulation applies to solicitors who were admitted, or to registered
European lawyers who were so registered, prior to the coming into force of
Section 31C of the Courts and Legal Services Act 1990 and who, at the time
of their admission or their initial registration, had at any time been barristers
or European lawyers registered with the General Council of the Bar under the
European Communities (Lawyer’s Practice) Regulations 2000-
(2)
10.
(a)
who had, and were entitled to exercise, rights of audience in all courts
and in all proceedings; and
(b)
whose entitlement to exercise those rights of audience was not a
provisional or a temporary one; and
(c)
who were not banned from exercising any of those rights of audience
as the result of disciplinary proceedings, unless, having been so
banned, the ban was subsequently lifted.
Upon application, a higher courts advocacy qualification in those proceedings
in which they are seeking to exercise rights of audience may be granted to
solicitors or registered European lawyers who:
(a)
are persons to whom this regulation applies; and
(b)
unless the Society is satisfied that they have recent relevant advocacy
experience, have undertaken such steps as the Society may specify.
Exemptions under section 31C of the Courts and Legal Services Act
1990
With respect to his or her entitlement to exercise a right of audience before a
court in proceedings of a particular description, a solicitor or registered
European lawyer is exempt from the requirements of Regulation 2(3) if he or
she is a person to whom, in respect of that court and that description of
proceedings, Section 31C of the Courts and Legal Services Act 1990 applies.
By virtue of that section he or she shall have a higher courts advocacy
qualification in respect of that entitlement.
11.
Conversion provision for registered European lawyers
Any registered European lawyer who is granted any of the qualifications listed
in regulation 3(1) shall keep that qualification upon being admitted as a
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solicitor.
12.
Applications and appeals
(1)
An application under these regulations shall be made on the form prescribed
by the Society for the purpose and shall be accompanied by the appropriate
fee fixed from time to time by the Society.
(2)
A solicitor or registered European lawyer applying for a higher courts
advocacy qualification who is aggrieved by a decision of the Society under
regulations 5, 6, 7, 8 or 9 may:
(a)
within 28 days of receiving notification of the decision ask for the
decision to be reviewed. The Society shall review the decision as
soon as is reasonably practicable and notify the applicant of the
outcome; and
(b)
within three months of receiving notification of the outcome of the
review, appeal to the Master of the Rolls who may:

affirm the decision of the Society; or

give directions as to how the Society should exercise its functions
under these regulations, including making directions to the Society
to grant a higher courts advocacy qualification.
(3)
No appeal lies to the Society or the Master of the Rolls against a decision by
an assessment or training provider that an applicant has failed an
assessment.
13.
Continuing professional development
(1)
Solicitors or registered European lawyers who have gained a higher courts
advocacy qualification under regulations 5 to 9 of these regulations, or who
are exercising any right of audience in the higher courts by virtue of any
exemption they have under Regulation 10, are subject to the continuing
professional development requirements in the Training Regulations 1990.
They must, in complying with these requirements, undertake at least five
hours continuing professional development relating to the provision of
advocacy services in the higher courts in each of the first five continuing
professional development years following the grant of the qualification or (in
the case of solicitors or registered European lawyers who exercise any right
of audience in the higher courts by virtue of any exemption under regulation
10) the date of their first exercise of the right.
(2)
If a solicitor or registered European lawyer does not work for any period in
legal practice or employment in England and Wales this requirement is
suspended for that period.
14.
Waiver
In any particular case the Society has power to waive in writing any of the
provisions of these regulations and to revoke such waiver.
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15.
Transitional arrangements
(1)
Solicitors and registered European lawyers who have gained a certificate of
eligibility to take the Society’s Test or Tests in Procedure and Evidence
before the date of commencement of these regulations under regulation 6 of
the 1992 Regulations or Regulation 6 of the 1998 Regulations, but have not
yet been granted a higher court advocacy qualification, will have to undertake
the training and assessment provided for by the development route under
regulation 5(1)(a) and (b) of these regulations.
(2)
Solicitors and registered European lawyers who have successfully passed the
Test or Tests in Procedure and Evidence before the date of commencement
of these regulations will be treated as applying under Regulation 6 of these
regulations and have to undertake the advocacy assessment specified by the
Society under Regulation 6(1)(d) of these regulations and comply with any
other steps and conditions specified by the Society.
(3)
Solicitors and registered European lawyers who have applied to the Society
before the commencement of these regulations under Regulation 4 of the
1998 Regulations but have not been granted a higher courts advocacy
qualification shall be regarded as having applied under Regulation 7 of these
regulations.
(4)
Solicitors and registered European lawyers who have applied to the Society
before the commencement of these regulations under Regulation 5 of the
1998 Regulations shall be regarded as having applied under Regulation 6 of
these regulations.