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. Solicitors and RELs wishing to undertake criminal advocacy must comply with the SRA QASA Regulations. 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 underpin 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

The SRA Handbook Glossary 2012 shall apply and, unless the context otherwise requires:

(a)

all italicised terms shall be defined; and

(b)

all terms shall be interpreted;

in accordance with the Glossary.

Part 2: Rights, and qualification

Regulation 2: Rights of audience

2.1

Subject to the provisions of these regulations, and in relation to criminal advocacy the SRA QASA Regulations, you may be authorised by us to exercise rights of audience in the higher courts.

2.2

Solicitors and RELs appearing in the Intellectual Property Enterprise Court (IPEC) do not need to hold a Higher Courts (Civil Advocacy) Qualification under these regulations.

Guidance note:

(i)

As a solicitor or REL you already have full rights of audience in Tribunals, Coroners Courts, Magistrates Courts, County Courts, the Family Court and European Courts. An application for civil higher rights of audience allows you to also appear in civil proceedings in the Crown Court, High Court, Court of Appeal and Supreme Court. Solicitors and RELs undertaking criminal advocacy must also comply with the SRA QASA Regulations.

(ii)

The IPEC, a specialist court within the Chancery Division of the High Court, replaced the Patents County Court (PCC) in October 2013. Prior to this, solicitors and RELs appearing did not need a higher rights qualification to appear in the PCC. As the cases, rules and procedures are not materially different, and the costs and damages limits are the same, we do not require solicitors and RELs to posses the civil qualification in order to exercise their rights of audience in the IPEC.

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:

(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, subject to the SRA QASA Regulations in relation to criminal advocacy, entitles the solicitor or REL 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.

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.

(ii)

You may not undertake criminal advocacy unless accredited to do so in accordance with the SRA QASA 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;

(b)

being an REL and having undertaken any further step(s) as may be specified by us under regulation 5.2; or

(c)

being a lawyer to whom Directive 2005/36 applies and having undertaken any further step(s) as may be specified by us under regulation 5.2.

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 a European jurisdiction

5.1

You may apply for a qualification to exercise rights of audience in the higher courts if you are an REL or a lawyer to whom Directive 2005/36 applies.

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 21 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.

(ii)

You may not undertake criminal advocacy unless you are accredited under the SRA QASA Regulations. If you have qualified as a solicitor under the QLTSR on the basis of being a barrister you will be entitled to bring your QASA accreditation level with 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

Subject to regulation 9.3, 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

Subject to regulation 9.3, 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.

9.3

If you have chosen to comply with regulation 3.1(b) of the SRA Training Regulations 2011 Part 3 - CPD Regulations, neither regulation 9.1 or 9.2 applies.

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.

(iii)

Regulation 9.3 means that, if you have opted to meet your responsibilities on ongoing competence through learning and development you deem necessary rather than the hours-based approach of the CPD regime, you should consider how the development activity you do contributes to maintenance of competence in higher courts advocacy and provision of a proper service to your clients.

Part 5: Applications, reviews and waiver

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: Waiver

11.1

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