SRA Handbook

SRA Qualified Lawyers Transfer Scheme Regulations 2011

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SRA Qualified Lawyers Transfer Scheme Regulations 2011

Introduction to the Qualified Lawyers Transfer Scheme 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: The SRA Qualified Lawyers Transfer Scheme Regulations 2010

Regulating: Lawyers seeking to be admitted as solicitors via transfer from another jurisdiction or other UK qualified lawyer, and lawyers seeking admission by virtue of European Directives 2005/36/EC and 98/5/EC.

Overview

Outcomes-focused regulation concentrates on providing positive outcomes which when achieved will benefit and protect clients and the public. These regulations set out the outcomes-focused requirements governing the qualification process for lawyers seeking to be admitted as solicitors via transfer from another jurisdiction or barristers. They also set out the means by which certain lawyers can seek admission by virtue of European Directive 2005/36/EC and the Establishment Directive.

Education and training performs the underpinning, fundamental role in regulating solicitors - the creation of competent and ethical practitioners. We regulate the transfer process in order to give admitted solicitors the tools they need to adhere to the 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 lawyers transferring from another jurisdiction 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 if you qualify as a solicitor by transfer from another jurisdiction, you:

O(QR1)

have achieved an appropriate standard of competence;

O(QR2)

undergo objective assessment to demonstrate this competence;

O(QR3)

are of proper character and suitability;

O(QR4)

have achieved an appropriate standard of written and spoken English;

O(QR5)

maintain competence through relevant ongoing training; and

O(QR6)

act so that clients, and the wider public, will have confidence that O(QR1) - O(QR5) have been demonstrated.

You must achieve, and where relevant continue to meet, these outcomes.

These outcomes, and the regulations that flow from them, apply to all those who are intending to become solicitors via transfer.

Part 1: Interpretation and eligibility

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

all European jurisdictions to which Directive 2005/36/EC and the Establishment Directive apply are recognised jurisdictions;

assets

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

assessment organisation

in the QLTSR means the organisation awarded the initial three year contract to provide the QLTS assessments, together with any other organisations subsequently authorised to provide the QLTS assessments after the initial three year period has expired;

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;

character and suitability

satisfies the requirement of section 3 of the SA in order that an individual shall be admitted as a solicitor;

client

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

client money

has the meaning given in Rule 12 of the SRA Accounts Rules, save that for the purposes of Part 7 (Overseas practice) of the SRA Accounts Rules, means money received or held for or on behalf of a client or trust (but excluding money which is held or received by a multi-disciplinary practice-a licensed body providing a range of different services-in relation to those activities for which it is not regulated by the SRA);

entitled to practise

means having the right to practise without restrictions or conditions as a qualified lawyer of the recognised jurisdiction;

Establishment Directive

means the Establishment of Lawyers Directive 98/5/EC;

full route to qualification

means that the applicant has not completed a shortened or fast-track route to qualification, which would be evidenced if non-domestic lawyers are not assessed on all the same outcomes/subjects/practices in the law of that jurisdiction as domestic candidates, prior to qualification;

International lawyers

means lawyers who are not basing their application on a professional qualification as a qualified lawyer gained within the UK or within the EEA or Switzerland;

Principles

means the Principles in the SRA Handbook;

QLTR

means the Qualified Lawyers Transfer Regulations 1990 and 2009;

QLTR certificate of eligibility

means a certificate issued under the QLTSR;

QLTS assessments

means the suite of assessments approved by us and provided by the assessment organisation;

QLTS certificate of eligibility

means a certificate of eligibility to take the QLTS assessments under the QLTSR, or an authorisation under the QLTSR to apply for admission as a solicitor without taking any of the QLTS assessments;

QLTT

means the Qualified Lawyers Transfer Test, namely the test which some lawyers are required to pass under the QLTR;

qualified lawyer

means either:

(i)

a lawyer whose qualification we have determined:

(A)

gives the lawyer rights of audience;

(B)

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

(C)

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

or

(ii)

any other lawyer to whom we determine Directive 2005/36 applies.

recognised jurisdiction

means a jurisdiction where we have determined that:

(i)

to become a qualified lawyer applicants have completed specific education and training at a level that is at least equivalent to that of an English/Welsh H- Level (e.g. Bachelor's) degree;

(ii)

members of the qualified lawyer's profession are bound by an ethical code that requires them to act without conflicts of interest and to respect their client's interests and confidentiality;

(iii)

members of the qualified lawyer's profession are subject to disciplinary sanctions for breach of their ethical code, including the removal of the right to practise;

all European jurisdictions to which Directive 2005/36/EC and the Establishment Directive apply are recognised jurisdictions for the purposes of these regulations;

SA

means the Solicitors Act 1974;

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.

SRA Admission Regulations

means the SRA Admission Regulations 2011;

UK

means United Kingdom;

UK qualified lawyer

in the QLTSR means solicitors and barristers qualified in Northern Ireland, solicitors and advocates qualified in Scotland and barristers qualified in England and Wales;

us 

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

you

for the purpose of the QLTSR means a person seeking admission as a solicitor via transfer in accordance with these regulations, and references to "your" will be construed accordingly.

Regulation 2: Eligibility

2.1

Subject to regulations 2.2 and 2.4 below, if you seek to establish eligibility to apply for admission under these regulations, you must provide such evidence as we may require to show that you:

(a)

are a qualified lawyer in a recognised jurisdiction;

(b)

have followed the full route to qualification in the recognised jurisdiction;

(c)

are entitled to practise as a qualified lawyer of the recognised jurisdiction;

(d)

have satisfied any applicable English language requirements published by us; and

(e)

are of the character and suitability to be admitted as a solicitor.

2.2

For the avoidance of doubt, any lawyer applying for admission pursuant to European Communities Directive 2005/36/EC or any legislation implementing that Directive in the UK is deemed to have satisfied 2.1(d) above.

2.3

We shall acknowledge receipt of your application under Directive 2005/36/EC within one month of receipt, and shall inform you if any document is missing.

2.4

Any lawyer applying for admission pursuant to the Establishment Directive or any legislation implementing that Directive in the UK, is deemed to have satisfied 2.1(b) and (d) above.

2.5

If we are satisfied that you are eligible, we must issue a QLTS certificate of eligibility to that effect.

2.6

If you do not hold a QLTS certificate of eligibility, you may not register with the assessment organisation to take any of the QLTS assessments.

2.7

A QLTS certificate of eligibility shall remain valid for a period of five years from the date of its issue. You cannot apply for a second or subsequent QLTS certificate of eligibility before the expiry of any existing certificate of eligibility.

Part 2: Assessments, recognised jurisdictions and qualified lawyers

Regulation 3: QLTS assessments

3.1

We shall:

(a)

publish guidelines and outcomes in relation to the QLTS assessment,

(b)

validate and authorise the provision of the QLTS assessments by the assessment organisation, and

(c)

monitor the provision of the QLTS assessments by the assessment organisation.

3.2

Subject to regulation 3.4 below, international lawyers must pass all the QLTS assessments.

3.3

If you are a lawyer applying for admission pursuant to European Communities Directive 2005/36/EC or any legislation implementing the Directive in the UK, or any UK qualified lawyer, you may be required to pass one or more QLTS assessments, as we shall determine.

3.4

Any applicant who has passed the LPC is eligible to apply for an exemption from Part 1 of the QLTS assessments.

Regulation 4: Review of lists of recognised jurisdictions and qualified lawyers

4.1

We will review the lists of recognised jurisdictions and qualified lawyers every five years or whenever written evidence is received which suggests the need for a jurisdiction or qualification to be reviewed.

4.2

For the avoidance of doubt, if you have not qualified in a recognised jurisdiction and/or are not a qualified lawyer for the purposes of these regulations, you have no right to appeal this designation by us.

Regulation 5: Lawyers seeking admission under the Establishment Directive

5.1

If you seek to establish eligibility pursuant to the Establishment Directive or any legislation implementing that Directive in the UK, you must prove to us that you have met the requirements of the Establishment Directive and implementing legislation and in particular that you have:

(a)

satisfied the nationality requirements set out in the legislation; and

(b)

satisfied our registration requirements; and either

(c)

effectively and regularly pursued for a period of at least three years a professional activity in the UK in the law of the UK including Community Law in accordance with article 10.1 of the Establishment Directive; or

(d)

effectively and regularly pursued a professional activity in the UK for a period of at least three years where your professional activity in the law of the UK has been for a period of less than three years, under the conditions set out in article 10.3 of the Establishment Directive.

Part 3: Appeals, and suitability

Regulation 6: Review of decisions on eligibility

6.1

Subject to regulation 4.2, if you seek to establish eligibility under regulation 2 (including regulation 5) you may, within one month of receiving notification from us of:

(a)

any decision to refuse to issue a QLTS certificate of eligibility; or

(b)

(under regulation 3.3) any decision to require you to pass one or more of the QLTS assessments;

ask for the application to be reviewed.

6.2

Where you are seeking to establish eligibility (other than pursuant to Directive 2005/36/EC or the Establishment Directive) and we have:

(a)

refused the initial application on the ground that you are not suitable to be admitted as a solicitor; and

(b)

determined not to reverse that refusal on review;

you have the right, within three months of receiving notification or deemed notification from us of our decision on the review, to appeal to the High Court under regulation 3 of the SRA Admission Regulations.

6.3

Where you are seeking to establish eligibility pursuant to Directive 2005/36/EC and we make a decision in respect of that application you have the right, within four months of receiving notification or deemed notification of our decision, to appeal to the High Court under regulation 36 of the European Communities (Recognition of Professional Qualifications) Regulations 2007.

6.4

Where you are seeking to establish eligibility pursuant to the Establishment Directive and we:

(a)

fail to take a decision on the initial application and notify it to you within four months of receipt of all the relevant documents;

(b)

refuse the initial application; or

(c)

have determined not to reverse that refusal on a review;

you have the right, within three months of receiving notification or deemed notification of our decision, to appeal to the High Court under regulation 35 of the European Communities (Lawyer's Practice) Regulations 2000.

Guidance note

(i)

Deemed notification in regulation 6 is:

(a)

the date on which the communication is delivered to or left at your last notified address or is sent electronically to your last notified email address or fax number;

(b)

for recipients in the EEA or Switzerland, seven days after the communication has been sent by post or document exchange to your last notified contact address; or

(c)

or recipients outside the EEA or Switzerland, 14 days after the communication has been sent by post or document exchange to your last notified contact address.

Regulation 7: Character and suitability of prospective solicitors

7.1

If we have granted you a QLTS certificate of eligibility under regulation 2, and at any time we are not satisfied as to your character and suitability to become a solicitor, we may on such terms as we determine prohibit any attempt at any or all of the QLTS assessments.

7.2

If we impose a prohibition under regulation 7.1, you may within one month of receiving notification or deemed notification from us of our decision, ask for the matter to be reviewed.

7.3

If you have been authorised to apply other than pursuant to Directive 2005/36/EC, you have the right to appeal to the High Court under regulation 3 of the SRA Admission Regulations within three months of receiving notification or deemed notification from us of our decision on a review under regulation 7.2.

7.4

If you have been authorised to apply pursuant to Directive 2005/36/EC, and we:

(a)

prohibit any attempt at any or all of the QLTS assessments under regulation 7.1; or

(b)

refuse to lift that prohibition on your application for review;

you have the right, within four months of receiving notification or deemed notification of our decision, to appeal to the High Court under regulation 36 of the European Communities (Recognition of Professional Qualifications) Regulations 2007.

7.5

You may make up to three applications to us to remove a prohibition after intervals of not less than 12 months from the final determination as to the imposition of the prohibition, or from the final determination of your previous application for review, as the case may be.

7.6

You have the right to appeal to the High Court under regulation 3 of the SRA Admission Regulations within three months of receiving notification or deemed notification from us of our decision on an application for the removal of a prohibition under 7.5.

Guidance note

(i)

For further information please consult the Suitability Test.

(ii)

For deemed notification guidance, please see the guidance note under regulation 6.

Part 4: Forms, fees and admission

Regulation 8: Forms and fees

8.1

If you wish to sit the QLTS assessments, you must give notice to the assessment organisation in the prescribed form and pay the prescribed fee.

8.2

If you wish to make an application or give notice to us in accordance with these regulations, you must do so in the prescribed form and pay the prescribed fee.

8.3

If at the time of making your application or giving a notice, no form has been prescribed by us or the assessment organisation, the application or notice must be in writing, signed by you or the person giving it and provide such information as is necessary to enable us or the assessment organisation to deal with the application.

8.4

Whether or not the application is made or notice given on a prescribed form we may, in our absolute discretion, require you, or the person giving notice, to furnish such further information as we consider necessary.

8.5

We may require:

(a)

your application to be supported by such evidence as we consider necessary;

(b)

facts relevant to your application to be accompanied by statutory declaration; and

(c)

your attendance for an interview.

8.6

For the avoidance of doubt, you may not apply to us for a review of a decision by an assessment organisation where you have failed one or more QLTS assessment(s).

Regulation 9: Admission as a solicitor

9.1

Admission as a solicitor takes place under Part 3 of the SRA Admission Regulations.

Part 5: Transition from previous regulations

Regulation 10: Commencement and repeal

10.1

The QLTSR 2010 came into force on 1 September 2010. On this date the QLTR 2009 ceased to have effect for new applications. The QLTR will continue in force for:

(a)

candidates holding valid QLTR certificates of eligibility; or

(b)

candidates who have submitted an application for a QLTR certificate of eligibility prior to 1 September 2010; and

(c)

those candidates that fall within regulation 11.3 below.

Regulation 11: Transitional arrangements

11.1

On 1 September 2010, we ceased to issue QLTR certificates of eligibility and instead began issuing QLTS certificates of eligibility.

11.2

The QLTT will continue to be available until the expiry of all QLTR certificates of eligibility.

11.3

If you have commenced the Bar Vocational Course after 1 August 2009 and before the commencement of these regulations on a part-time basis, your application for a certificate of eligibility shall be treated as if it were made under the QLTR provided that you have successfully completed the Bar Vocational Course:

(a)

prior to 31 August 2011; or

(b)

if we, in the exercise of our discretion, determine that your circumstances are exceptional, such later date as we determine shall apply.