Applications under Solicitors' Rights of Audience in the Higher Courts Regulations [2009]
Introduction
The SRA Board has approved a new assessment scheme for solicitors to gain the higher courts qualification. The Ministry of Justice is currently considering the proposed regulations and, if approved, we hope to introduce the new scheme on 1 April 2010.
The Ministry of Justice has agreed to extend the use of the current accreditation and exemption routes to qualification for higher courts advocacy until no later than December 2010. Once the new regulations are in place, which will likely come into force on 1 April 2010, the Higher Courts Qualification Regulations (HCQR) 2000 (and therefore these routes) will no longer be available.
How will the new scheme work?
- There will be separate awards for rights of audience for criminal and civil advocacy.
- There will be only one route to the civil qualification and one route to the criminal qualification.
- The new scheme will require all applicants to pass an advocacy assessment based on the SRA's higher rights of audience competence standards.
- There will be no mandatory training or experience requirement.
- Transitional arrangements will be in place for solicitors in the process of applying under the existing (2000) regulations.
- Assessments under the new scheme will be run by assessment providers authorised by the SRA.
- Solicitors who have already gained rights of audience qualifications will be automatically passported onto the new scheme and will retain their existing rights of audience.
What will happen in the existing system?
The new regulations have transitional arrangements to cover those who are taking assessments under the 2000 regulations.
Prospective assessment providers
Organisations who are interested in becoming assessment providers should have notified us. The deadline for submission of formal applications is Friday 15 January 2010. Authorisation events will take place in London in early February 2010.
Organisations who wish to offer the new assessments after 1 April 2010 can contact us at any time to arrange a later authorisation.
Full details of the new scheme will be available once the final approval has been granted. In the meantime, we have produced a list of questions and answers below about the new scheme for the benefit of all existing and potential holders of the qualification.
Frequently asked questions
General questions on eligibility and application procedure
How quickly will my application be dealt with?
If you have completed the advocacy assessments under the [2009] regulations and you apply on the new application form, your application will normally be dealt with within 30 days of receipt of all the necessary information.
What type of award will be available under the [2009] regulations?
There are separate awards and assessments for rights of audience for criminal and civil advocacy.
When can I make an application for higher rights of audience under the [2009] regulations?
Under the [2009] regulations, once you are admitted to the roll of solicitors, you will be able to undertake the advocacy assessment. You can apply for your higher rights of audience once you have a practising certificate and can evidence that you have passed the advocacy assessments.
Do I need to undertake any mandatory training?
No. The [2009] regulations do not require you to undertake any training.
However, you may decide that you need to undertake some additional training which will be offered by training providers. Alternatively, you may feel that you have gained sufficient experience to be able to pass the advocacy assessment. This will be for you to decide.
What is included in the new assessment?
The assessment under the [2009] regulations will test all parts of the standards for either the criminal or civil award. This will include procedure, evidence and ethics and an advocacy assessment by way of a case study or simulation. Applicants will be assessed separately for the civil award or the criminal award.
Is there an experience requirement?
No. Under the [2009] regulations, there is no experience requirement. Provided you have a current practising certificate and have passed the advocacy assessment, you can make an application.
Do I need a certificate of eligibility from the SRA to take the new assessment?
No. Provided you are an admitted solicitor you will be able to take the new assessment.
I currently hold a conditional practising certificate. How will that affect my application?
Clearly some conditions placed on practising certificates are more serious than others. The SRA does not automatically exclude any potential applicant and each application will be taken on its merits. This may mean that your application may take longer than the normal time.
Existing holders of higher rights of audience
I was awarded higher rights of audience under previous regulations. What effect will the new regulations have on my existing rights?
You will retain your existing rights of audience and effectively be "passported" into the new scheme. You will not be required to re-apply. However, you should be aware that the SRA is working together with the Bar Standards Board with a view to reaching common agreement on the issue of re-accreditation. This may result in a review of the requirements for passported solicitors at some point in the future.
I was awarded higher rights of audience under previous regulations. Am I required to complete the mandatory five hours CPD requirements in the five years following the award?
Yes. You must fulfil this requirement which has also been retained in the [2009] regulations.
Transitional arrangements
Development route
I have completed the training and assessments for Stage 1 – Procedure, Ethics & Evidence, and Stage 2 – Advocacy, prescribed for this route under the 2000 regulations, but I have not completed my portfolio. Do I have to complete the portfolio to apply under the new regulations?
No. The new regulations do not have a portfolio requirement. Once the new scheme is in force, if you are an admitted solicitor, you may apply for your higher rights of audience if you can evidence that you have passed all of the assessments prescribed by the 2000 regulations. Your application must be made within 24 months of the coming into force of the [2009] regulations.
I am an admitted solicitor who has undertaken the training and assessment in Evidence, Procedure and Ethics for the purposes of working towards gaining a higher court qualification under the development route. I have not yet passed the advocacy assessment. What can I do to gain my higher rights?
Under the transitional arrangements, if you have passed the assessment for Evidence, Procedure, and Ethics but not the Advocacy test, you will have 24 months from the date the [2009] regulations come into effect to pass the outstanding assessment. If you have not completed the outstanding assessment by the end of this transition period you will have to undertake the new assessment in its entirety. You would not have to complete the portfolio.
I am a trainee solicitor who has undertaken the training in Procedure, Evidence and Ethics (Stage 1) as part of a Professional Skills Course (PSC) elective and for the purposes of working towards gaining a higher court qualification under the development route. I have not yet passed Stage 2. What can I do to gain my higher rights?
Under the transitional arrangements, if you have passed the assessment for Evidence, Procedure, and Ethics but not the Advocacy test, you will have 24 months from the date the [2009] regulations come into effect to pass the outstanding assessment. However, you will not be able to apply under the new scheme until you are admitted as a solicitor. If you have not completed the outstanding assessment by the end of this transition period you will have to undertake the new assessment in its entirety. Again, you would not have to complete the portfolio.
As a trainee solicitor I undertook and passed the training and assessments for Evidence, Procedure and Ethics under the 2000 regulations. I have not yet been admitted and will be unable to complete a portfolio before the [2009] regulations come into effect. How can I gain my higher rights of audience?
Under the transitional arrangements if you have passed both parts of the assessments under the 2000 regulations, this will satisfy the requirements of the [2009] regulations. You will be able to apply for your higher rights as soon as you have been admitted and can evidence that you have passed the assessments.
I am a non-practising barrister who did not complete pupillage and I am due to be admitted as a solicitor after the new regulations come into effect. Do I have to take the new assessment?
Yes. However, if you completed the BVC before commencement of the [2009] regulations you may be eligible for a concession granted under the previous regulations. Please contact us for further information.
Accreditation route
Under the 2000 regulations I was granted a certificate of eligibility to sit an advocacy test. Can I complete this or do I have to take the new test?
If you have a valid certificate of eligibility, you may sit the test by the expiration date of your certificate and apply for your higher rights of audience within the transition period. If you are unable to sit the test before the certificate expires, you will be required to take the new assessments and make a fresh application under the [2009] regulations. There is no provision for the SRA to grant an extension to the certificate of eligibility. If you wish, you may withdraw your application under the 2000 regulations and take the new assessment(s) and apply under the [2009] regulations.
Exemption route
Are there any transitional arrangements for this route?
This route will disappear once the new regulations come into effect. However, if you have previously made an application for this route under the 2000 regulations and have conditions to satisfy, you may complete your application within 12 months of the coming into force of the [2009] regulations.
Former barrister route
Are there any transitional arrangements for this route?
No. This route will disappear once the new regulations come into effect.
Barristers with existing higher rights of audience who are preparing to transfer to the solicitors' profession
I am in the process of transferring to the solicitors' profession. At what point do I have to apply to retain my existing higher rights of audience?
You do not have to apply to retain your existing higher rights of audience. When you apply to be admitted to the Roll, you will be asked to declare that you were formerly a barrister with higher rights of audience and with no disciplinary proceedings in progress. If you provide this information at the point of admission, the SRA will automatically award your solicitors higher rights.
Continuing professional development
The [2009] regulations refer to a requirement to undertake at least five hours continuing professional development (CPD) relating to advocacy in the higher courts in each of the first five years following the award of the qualification. What does this mean and when do I have to start this CPD?
This requirement is not in addition to a solicitor's compulsory CPD requirement, currently 16 hours per year. It applies to all solicitors who gain the award under the 2000 and [2009] regulations and start the CPD year following the year in which the qualification was awarded. It is up to the individual to decide what their training needs are in relation to the advocacy services they provide. Therefore, the training may be advocacy training, training on new procedures or on substantive law if relevant to higher court practice.
I have obtained my higher rights of audience by qualifying through the Qualified Lawyers Transfer arrangements with a comparable qualification from another jurisdiction – when does my five-year CPD requirement start?
The five-year period starts from the date you first undertake advocacy within the higher courts of England and Wales.