SRA Handbook

SRA Higher Rights of Audience Regulations 2011

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SRA Higher Rights of Audience Regulations 2011

Introduction to the Higher Rights of Audience Regulations

Preamble

Authority: Made on 17 June 2011 by the Solicitors Regulation Authority Board under sections 2, 79 and 80 of the Solicitors Act 1974 with the approval of the Legal Services Board under paragraph 19 of Schedule 4 to the Legal Services Act 2007

Date: These regulations came into force on 6 October 2011

Replacing: Solicitors' Higher Rights of Audience Regulations 2010

Regulating: The qualifications that solicitors and RELs require to exercise rights of audience in the higher courts in England and Wales.

Overview

Outcomes-focused regulation concentrates on providing positive outcomes which when achieved will benefit and protect clients and the public. These regulations aim to ensure that solicitors and RELs who want to exercise rights of audience in the higher courts of England and Wales are competent to do so.

Solicitors and RELs are granted rights of audience in all courts upon qualification/registration but cannot exercise those rights in the higher courts until they have complied with additional requirements. We are required to set the education and training requirements which you must comply with in order for these rights to be used. These regulations describe the qualifications available, where rights can be transferred, and set out the process for becoming eligible to exercise rights of audience in the higher courts.

The intention is to give the public confidence that solicitor higher court advocates have met appropriate standards and adhere to the relevant Principles.

The Principles

These regulations form part of the Handbook, in which the 10 mandatory Principles are all-pervasive. They apply to all those we regulate and to all aspects of practice. Outcomes relevant to these regulations are listed beneath the Principles.

You must:

1. uphold the rule of law and the proper administration of justice;
2. act with integrity;
3. not allow your independence to be compromised;
4. act in the best interests of each client;
5. provide a proper standard of service to your clients;
6. behave in a way that maintains the trust the public places in you and in the provision of legal services;
7. comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner.
8. run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;
9. run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and
10. protect client money and assets.

Outcomes

The outcomes which apply to these regulations are that:

O(HR1)

you have achieved the standard of competence required of higher courts advocates;

O(HR2)

you demonstrate this competence through objective assessment;

O(HR3)

you maintain competence through relevant ongoing training; and

O(HR4)

you act so that clients, the judiciary and the wider public, have confidence that this has been demonstrated.

These outcomes, and the regulations that flow from them, apply to admitted solicitors, and RELs.

Part 1: Interpretation

Regulation 1: Interpretation and definitions

1.1

Unless the context otherwise requires, the definitions and interpretation provisions as set out within the SRA Glossary shall apply to these regulations.

1.2

In these regulations:

assets

includes money, documents, wills, deeds, investments and other property;

barrister

means a person called to the bar by one of the Inns of Court and who has completed pupillage and is authorised by the General Council of the Bar to practise as a barrister;

client

means the person for whom you act and where the context permits, includes prospective and former clients;

CPD 

means the Common Professional Examination, namely a course, including assessments and examinations, approved by the JASB for the purposes of completing the academic stage of training for those who have not satisfactorily completed a QLD;

CPD year

means each year commencing 1 November to 31 October;

comparable jurisdiction

means:

(i)

for lawyers qualified through the QLTR, those jurisdictions listed in paragraphs 1 and 2 of the Schedule to the QLTR; or

(ii)

for lawyers qualified through the QLTSR, recognised jurisdictions as defined in the QLTSR;

higher courts

means the Crown Court, High Court, Court of Appeal and Supreme Court in England and Wales;

higher courts advocacy qualification

means, subject to regulation 6 of the SRA Higher Rights of Audience Regulations, one of the qualifications referred to in regulation 3 of those regulations to exercise extended rights of audience in the higher courts;

LPC

means a Legal Practice Course, namely, a course the satisfactory completion of which is recognised by us as satisfying, in part, the vocational stage of training;

practice

means the activities, in that capacity, of:

(i)

a solicitor;

(ii)

an REL, from an office or offices within the UK;

(iii)

a member of an Establishment Directive profession registered with the BSB under the Establishment Directive, carried out from an office or offices in England and Wales;

(iv)

an RFL, from an office or offices in England and Wales as:

(A)

an employee of a recognised sole practitioner;

(B)

a manager, employee or owner of an authorised body or of an authorised non-SRA firm; or

(C)

a manager, employee or owner of a body which is a manager or owner of an authorised body or of an authorised non-SRA firm;

(v)

an authorised body;

(vi)

a manager of an authorised body;

(vii)

a person employed in England and Wales by an authorised body or recognised sole practitioner;

(viii)

a lawyer of England and Wales; or

(ix)

an authorised non-SRA firm;

and "practise" and "practising" should be construed accordingly; save for in:

(x)

the SRA Indemnity Insurance Rules where "practice" means the whole or such part of the private practice of a firm as is carried on from one or more offices in England and Wales; and

(xi)

the SRA Indemnity Rules where it means a practice to the extent that:

(A)

in relation to a licensed body, it carries on regulated activities; and

(B)

in all other cases, it carries on private practice providing professional services as a sole solicitor or REL or as a partnership of a type referred to in Rule 6.1(d) to 6.1(f) and consisting of or including one or more solicitors and/or RELs, and shall include the business or practice carried on by a recognised body in the providing of professional services such as are provided by individuals practising in private practice as solicitors and/or RELs or by such individuals in partnership with RFLs, whether such practice is carried on by the recognised body alone or in partnership with one or more solicitors, RELs and/or other recognised bodies;

previous regulations

means either the Higher Courts Qualification Regulations 1992, the Higher Courts Qualification Regulations 1998, or the Higher Courts Qualification Regulations 2000, or the Solicitors' Higher Rights of Audience Regulations 2010;

Principles

means the Principles in the SRA Handbook;

QLTR

means the Qualified Lawyers Transfer Regulations 1990 and 2009;

QLTSR

means the SRA Qualified Lawyers Transfer Scheme Regulations 2010 and 2011;

qualified lawyer

means a lawyer whose qualification we have determined:

(i)

gives the lawyer rights of audience;

(ii)

makes the lawyer an officer of the court in that jurisdiction; and

(iii)

has been awarded as a result of a generalist (non-specialist) legal education and training;

solicitor

means a person who has been admitted as a solicitor of the Senior Courts of England and Wales and whose name is on the roll kept by the Society under section 6 of the SA, save that in the SRA Indemnity Insurance Rules includes a person who practises as a solicitor whether or not he or she has in force a practising certificate and also includes practice under home title of a former REL who has become a solicitor;

SRA 

means the Solicitors Regulation Authority, and reference to the SRA as an approved regulator or licensing authority means the SRA carrying out regulatory functions assigned to the Society as an approved regulator or licensing authority;

statement of standards

means the "Statement of standards for solicitor higher court advocates" issued by us;

us 

means the SRA, and "we", "our" and "ourselves" should be construed accordingly;

you

for the purpose of these regulations means a solicitor or an REL, and references to "your" should be construed accordingly.

Part 2: Rights, and qualification

Regulation 2: Rights of audience

2.1

Subject to the provisions of these regulations you may be authorised by us to exercise rights of audience in the higher courts.

Guidance note:

(i)

As a solicitor or REL you already have full rights of audience in Tribunals, Coroners Courts, Magistrates Courts, County Courts and European Courts. An application for higher rights of audience allows you to also appear, subject to which qualification you obtain, in proceedings in the Crown Court, High Court, Court of Appeal and Supreme Court.

Regulation 3: Qualifications to exercise extended rights of audience

3.1

If you meet the requirements of these regulations, we may grant one or both of the following qualifications, which authorise you to conduct advocacy in the higher courts:

(a)

Higher Courts (Civil Advocacy) Qualification which entitles the solicitor or REL to exercise rights of audience in all civil proceedings in the higher courts, including judicial review proceedings in any court arising from any criminal cause;

(b)

Higher Courts (Criminal Advocacy) Qualification which entitles the solicitor or RELto exercise rights of audience in all criminal proceedings in the higher courts and judicial review proceedings in any court arising from any criminal cause.

3.2

If you have been granted a higher courts qualification by the Law Society or us under the previous regulations, you shall be deemed to have been granted the equivalent qualification or qualifications under regulation 3.1 above.

Guidance note

(i)

If you have been granted a higher courts advocacy qualification under previous regulations, you are not required to re-apply under these regulations.

Regulation 4: Qualifying to exercise extended rights of audience

4.1

When applying for a higher courts advocacy qualification you must demonstrate to us that you are competent to undertake advocacy in the proceedings in relation to which you have applied by:

(a)

successfully completing assessments prescribed by us; or

(b)

having gained an equivalent qualification in a comparable jurisdiction or a jurisdiction listed in Article 1 of the Establishment Directive and undertaken any further step(s) as may be specified by us under regulation 5.

4.2

We will issue standards against which the competence of those applying for a higher courts advocacy qualification and exercising those rights of audience conferred by the qualification awarded will be assessed. The standards do not form part of these regulations and may be amended from time to time by us.

Part 3: Rights from previous professional status

Regulation 5: Qualification gained in another jurisdiction

5.1

You may apply for a qualification to exercise rights of audience in all proceedings in the higher courts if you are a qualified lawyer in any comparable jurisdiction or a jurisdiction listed in Article 1 of the Establishment Directive.

5.2

Each application will be considered by us on its merits and we may require you to undertake such steps as we may specify in order to gain the qualification.

Regulation 6: Conversion provisions for barristers

6.1

In accordance with paragraph 86 of Schedule 19 of the LSA, a barrister with existing higher rights of audience will automatically be awarded the solicitors' higher rights of audience when applying to the roll.

Guidance note

(i)

You will be required to declare when applying to be admitted to the roll that you were formerly a barrister with higher rights of audience and that you have no disciplinary proceedings in progress against you.

Regulation 7: Conversion provision for RELs

7.1

If you are an REL who is granted a qualification listed in regulation 3.1, you shall keep that qualification upon being admitted as a solicitor.

Part 4: Assessments and ongoing training

Regulation 8: Assessments

8.1

We shall:

(a)

issue guidelines and standards for the provision of competence assessments in higher courts civil advocacy and higher courts criminal advocacy;

(b)

validate and authorise organisations to provide assessments; and

(c)

monitor the provision of assessments.

Guidance note

(i)

You are not required to undertake any training before taking the assessments, but you may decide that you need to undertake additional training, which will be offered by assessment organisations. Whether or not you require additional training is a decision for you.

(ii)

In satisfying the standards, you will need to comply with the relevant legislation and procedures in force at the time.

(iii)

You can apply for the qualification in either civil or criminal proceedings. Assessment providers will offer assessments that cover the generic standards in evidence, ethics, advocacy and equality and diversity as well as specific standards in either civil or criminal proceedings. If you wish to obtain the qualification in both proceedings you must take both assessments.

(iv)

A trainee may undertake the assessments but will not be permitted to exercise the rights until admission as a solicitor.

Regulation 9: Continuing professional development

9.1

If you have gained a higher courts advocacy qualification under regulation 3.1, you must undertake at least five hours of CPD relating to the provision of advocacy services in the higher courts in each of the first five CPD years following the grant of the qualification.

9.2

If you have gained a higher courts advocacy qualification under regulation 5.1 or are exercising any right of audience in the higher courts by virtue of any exemption you have under regulation 6, you must undertake at least five hours of CPD relating to the provision of advocacy services in the higher courts in each of the first five CPD years following the date of your first exercise of the right.

Guidance note

(i)

The requirements in regulation 9.1 and 9.2 are not an additional requirement to that required by the SRA Training Regulations Part 3 - CPD Regulations.

(ii)

This requirement commences the CPD year following the year in which the qualification is awarded or from the date you first undertake advocacy in the higher courts if qualifying via a comparable qualification. It is up to you to decide what your training needs are in relation to the advocacy services you provide. Therefore, the training may be advocacy training, training on new procedures or on substantive law if relevant to higher court practice.

Part 5: Applications, reviews and transitional arrangements

Regulation 10: Applications and reviews

10.1

You shall make an application under these regulations in the manner prescribed by us and accompanied by the appropriate fee fixed from time to time.

10.2

You shall not apply for a higher courts advocacy qualification until one of the requirements of regulation 4 has been met.

10.3

When applying for a higher courts advocacy qualification, you may within 28 days of receiving notification of our decision ask for the decision to be reviewed.

10.4

You may not apply to us for a review of a decision by an assessment provider where you have failed an assessment.

Guidance note

(i)

An application for higher rights of audience should be made via our website - www.sra.org.uk.

Regulation 11: Transitional arrangements

11.1

If, at the time the Solicitors' Higher Rights of Audience Regulations 2010 came into force you had undertaken in part the requirements specified in regulation 5 of the Higher Courts Qualification Regulations 2000 (the development route) and have not been granted the Higher Courts (All Proceedings) Qualification, you may either:

(a)

within 24 months of the coming into force of the Solicitors' Higher Rights of Audience Regulations 2010, complete the requirements set out in regulations 5(1)(a) and 5(1)(b) of the Higher Courts Qualification Regulations 2000, which will be treated as meeting the requirements of regulation 4 of these regulations, and may be granted both the Higher Courts (Civil Advocacy) Qualification and the Higher Courts (Criminal Advocacy) Qualification; or

(b)

apply for a higher courts advocacy qualification in accordance with these regulations.

11.2

If, at the time the Solicitors' Higher Rights of Audience Regulations 2010 came into force, you had applied to us under regulation 6 of the Higher Courts Qualification Regulations 2000 (the accreditation route) but have not been granted a higher courts advocacy qualification, you may either:

(a)

within 24 months of the coming into force of the Solicitors' Higher Rights of Audience Regulations 2010 regulations complete the requirements set out in regulations 4(1)(b) and 6 of the Higher Courts Qualification Regulations 2000, which will be treated as meeting the requirements of regulation 4 of these regulations, and may be granted one of or both the Higher Courts (Civil Advocacy) Qualification and the Higher Courts (Criminal Advocacy) Qualification; or

(b)

withdraw your application under the Higher Courts Qualification Regulations 2000 and apply for one of or both the Higher Courts (Civil Advocacy) Qualification and the Higher Courts (Criminal Advocacy) Qualification in accordance with these regulations.

11.3

We have the power to waive in writing any of the provisions of regulation 11 and to place conditions on and to revoke such waiver.