Updated 2 November 2015 (Date first published: 6 October 2011)
The purpose of this statement is to
All previous waiver guidelines had effect until 5 October 2011. From 6 October 2011 they were replaced with this statement, supplemented where necessary with further category-specific waiver guidelines, consistent with both this statement and with the provisions of the Handbook.
Which provisions can be waived?
In what circumstances can waivers be granted?
A regulated person or firm applying for a waiver will need to show that the circumstances of the application are sufficiently exceptional to justify a departure from the relevant provision(s). It is for the applicant to demonstrate that exceptional circumstances exist. Examples of factors that might be taken into account include
- an unintended or capricious effect arising from the operation of the provisions
- hardship arising from the operation of the provisions
- a public benefit to be gained by a departure from the provisions; or
- some other exceptional case justifying the grant of a waiver;
with no appreciable attendant downside risks.
Circumstances which would militate against the granting of a waiver would include that
- the waiver would undermine the public interest which the provisions are designed to safeguard;
- the waiver would undermine the integrity of a provision; and
- the waiver would be contrary to the policy of the SRA.
In all cases an applicant will need to satisfy us that granting a waiver will not give rise to a material risk to the regulatory objectives in s.1 Legal Services Act 2007 or the the SRA Principles contained in the Handbook, neither of which we have the power to waive.
Set out below is an illustration of how the waivers policy operates in relation to the SRA Practice Framework Rules. In all circumstances the SRA's decision will be based on the factors set out in paragraphs four to six above.
SRA Practice Framework Rules (PFR)
We currently grant waivers of regulatory equivalents of the PFR, for example regarding supervision requirements and the activities of in-house solicitors and registered European lawyers. This is sometimes in recognition of the fact that the rules apply to solicitors working in a variety of entities, and the rules may have some unintended consequences, bearing in mind the particular circumstances.
We anticipate that under the new regulatory regime, similar circumstances will arise which may justify the grant of a waiver. So, solicitors working in not for profit organisations might wish to apply for a waiver in respect of the charging restrictions if they feel there are exceptional circumstances, such as particular public interest, consumer, access to justice and/or competition benefits to be gained from a departure from the normal rule.
Please use www.sra.org.uk/waivers to link to this page.