Impact assessment (summary)

Qualified Lawyers Transfer Scheme

Business unit: Education and Training Unit
Date:  April 2010

Update

Since this equality impact assessment (EIA) was originally published in November 2009, the SRA has further developed its proposals on assessment and the English language requirement. The SRA submitted its proposals and regulations to the Legal Services Board (LSB) on 10 March 2010. The LSB approved the regulations on 31 March 2010. The regulations will come into force on 1 September 2010. The SRA has commenced the tender process for the assessment provider.

The full EIA and summary EIA have been updated to reflect the position as at March 2010. Significant changes are highlighted.

Overview

The Solicitors Regulation Authority Board has approved proposals for the framework of a new transfer scheme, providing eligible lawyers with a fast-track route to admission as a solicitor in England and Wales. The Qualified Lawyer Transfer Scheme (QLTS) will be available to international and UK qualified lawyers.

The primary focus of the new scheme is to establish parity of standards between solicitors who have followed the domestic route to qualification and the qualified lawyers seeking to exercise full practising rights through the scheme. The proposed benchmark against which transferees should be assessed is the same benchmark which applies to individuals who qualify under the domestic route. We have described these as "the day one outcomes", which includes generic skills such as analytics and problem-solving, as well as particular areas of knowledge, such as contract law.

All applicants for the scheme will be assessed against the same set of standards and will be required to take the same assessments. The only exceptions are for those entitled to any exemptions by virtue of EU legislation, or because they have qualified within the UK. Save for competence in the English language (discussed further below), applicants from these groups are not exempted from demonstrating the necessary skills and experience, but they will be assessed on an individual basis rather than be required to take the full range of assessments identified within the scheme.

The aims of the scheme are

• to provide assurance to consumers and other stakeholders that solicitors who have been admitted via the transfer route have been assessed as competent to practise,
• to protect the client and public interest, and
• to ensure the effective administration of justice and the rule of law.

Data monitoring

As the proposed scheme is new, we do not have data on the actual impact that it has had on applicants or potential applicants for the scheme. The work that is proposed to gather the data when the scheme is implemented is set out in the action plan below.

However, we have considered data from a number of sources in conducting this equality impact assessment including:

• the responses to the consultation - respondents included the Law Societies of England and Wales, Scotland and Northern Ireland, the Law Society of Ireland, the Law Council of Australia, local law societies, the Legal Services Commission, the Junior Lawyers Division, training organisations and a range of firms and individuals;
• statistical data for solicitors who have qualified through the existing transfer process for lawyers qualified outside of England and Wales - the Qualified Lawyers Transfer Test (QLTT);
• a 2008 motivation survey - to improve our understanding of transferees' motivations;
• benchmarking of other regulators, in particular: Royal Institute of Chartered Surveyors (RICS), General Dental Council (GDC), Institute of Chartered Accounts in England and Wales (ICAEW), Royal College of Veterinary Surgeons (RCVS) and General Medical Council (GMC);
• a roundtable meeting with potential providers of the proposed assessments.

In the next section, the data is discussed in more detail in the context of assessing the potential impact for equality of several key aspects of the scheme.

Does the policy have the potential to positively or adversely impact on equality for different groups?

Day One Outcomes

The majority of those responding to the consultation agreed that there should be parity with solicitors qualifying through the domestic route and that the "day one outcomes" should be used as the benchmark.

There was some concern that this may discourage some lawyers from applying and choosing instead to work as Registered Foreign Lawyers or Registered European Lawyers. We will monitor whether there is a fall in the number of applicants for the scheme and/or a rise in the number of Registered Foreign or European Lawyers.

Under the QLTR, lawyers from certain (mainly Commonwealth) jurisdictions were exempt from some of the subjects. There will no longer be any exemptions available for non-EEA lawyers, therefore the QLTS will have an impact on lawyers from jurisdictions which are currently eligible for the QLTR. However, as set out in the EIA, the QLTS proposals can be justified, in the pubic interest, as being a fairer and more transparent way of ensuring that all solicitors meet the requisite standard.

By law, all lawyers applying under the EU Directives will be individually assessed to ascertain which of these outcomes they have already met. All intra-UK transferees will also be individually assessed as this is a proportionate approach to countries which overlap in terms of legislative, court and qualification systems.

Character and suitability

It was agreed by those responding to the questionnaire that the same test should be applied as for domestic solicitors, but it was recognised that this may be complex to apply in an international arena.

The SRA is reviewing how it tests for character and suitability as a whole in 2010, and a separate equality impact assessment will consider this area in more detail.

Eligibility to apply

The majority of respondents to the consultation agreed with the proposal that transferees should be fully qualified in their original jurisdictions before becoming eligible for the scheme.

However, some concern was expressed about graduates of the Bar Professional Training Course (BPTC) who were unable to qualify because of difficulties in securing a pupillage. This was cited as a reason for seeking to transfer by a number of respondents to the motivation survey. We are aware that black and minority ethnic (BME) students are over-represented in this group and may therefore be adversely impacted by this aspect of the scheme.

The difficulties that BME students may have in securing pupillage is primarily a matter for the Bar, but we do not wish to compound any such potential disadvantage. We are satisfied that the scheme requirements are justified and in the public interest, to ensure that access to the profession is limited to those who are qualified and to maintain consistently high standards. However, the SRA has previously agreed in principle to an exemption from taking the Legal Practice Course (LPC), although not from the LPC assessments. Once implemented this may reduce the potential negative impact for BME graduates of the BPTC. This aspect of the policy is being developed at present.

Recognised jurisdiction approach

Respondents to the consultation largely agreed that eligibility should be from a wider range and larger number of jurisdictions. In the light of some of the responses, we revised the criteria for recognising eligible jurisdictions originally proposed to ensure it was objective. We have concluded that it is not necessary to phase in the work involved in recognised jurisdictions and that new jurisdictions will be considered as and when responses are received from the international bars and law societies.

Some respondents did raise concerns about the risk of discrimination which we considered very carefully. We did not find that there was any direct discrimination, because restricting those who have qualified in a particular jurisdiction is not a restriction based on race, ethnicity, nationality or ethnic origin as protected by the Race Relations Act.

However, there was a potential for indirect discrimination, which led us to consider whether our approach was justified as a proportionate means of achieving a legitimate aim. We are satisfied that our proposed approach is justified, considering the aims of the scheme set out above. The scheme is offering a fast-track route for qualification to practise in England and Wales. Although the SRA will rely heavily on the assessment of whether candidates meet most of the day one outcomes, the SRA in addition needs to be satisfied that the home qualification and regulatory system is sufficiently similar to justify access to this fast-track route.

We considered alternatives, but none of the proposals would allow us to accurately assess whether the jurisdiction was sufficiently similar to ours. There will be a mechanism for reviewing whether the jurisdiction ought to be recognised, but not for reviewing the particular circumstances of individuals coming from the excluded jurisdiction as this would undermine the objectivity of the criteria and fairness of the scheme.

We are satisfied that the chosen route is the most appropriate way of meeting the aims of the scheme and that our approach is a proportionate means of achieving a legitimate aim.

Jurisdictions within the European Economic Area (EEA) and Switzerland will be deemed to be recognised as they enjoy particular rights given to them by European legislation.

Practical assessments

We are proposing to include practical assessments for some of the generic legal skills and this will stand in place of the existing experience requirements for transferees. Most consultation responses were in favour of this proposal. The only impact for equality that we identified was the potential difficulties that this approach may present for transferees with a disability or older transferees who may not have encountered practical assessment in recent years or at all.

We noted that practical testing was widely used by other regulators and there were examples of good practice that we would adopt as we developed this aspect of the scheme. We also looked at the data we held for the current practising solicitors who had qualified through the QLTT. Disability data was held for only 12 per cent of QLTT qualified solicitors and of these only 0.16 per cent were recorded as having a disability. We had a full set of data in relation to age and noted that 88 per cent of the group were under 40 on admission.

We felt that there were no alternatives which would deliver the same opportunity to test transferees' practical skills, as an objective practical assessment would and have decided to proceed with this approach. However, we will be working very closely with disability and other equality groups to understand and address potential problems and will ensure that the particular requirements that we identify are included in the tender process for the assessment provider. We will monitor the assessment process annually to assess the impact on equality groups by requiring information and analysis on pass rates by reference to the equality strands.

For disabled transferees, we would expect that any problems will be mitigated by the provision of reasonable adjustments and this will be a key requirement of the tender process in appointing the assessment provider. We will make sure that effective guidance about what the test will involve and example questions are made available.

English language requirement

To ensure competence in English, which is essential to act as a solicitor in this jurisdiction, we have decided to require all transferees to evidence that they are competent in the English language to the Common European Framework of Reference Level C2, before they are eligible to take the assessments. We have recognised that this could indirectly discriminate against people from non-English speaking countries and have considered whether this could be justified.

Respondents to the consultation agreed that competence in the English language was important but not all agreed that a separate test was necessary.

In response to comments received from stakeholders, and in particular, Lord Ouseley's External Implementation Group, the SRA has approved four different ways in which applicants can evidence their English language competence.

Applicants will need to evidence that they have met the Common European Framework of Reference Level C2 (which equate to A-level standard).

Candidates will be able to evidence that they have met Level C2 by the following means:

• by passing an English language test at Level C2 through a provider approved by the SRA, within 2 years of the applicant applying for the certificate of eligibility
• by holding a degree assessed by UK NARIC as being taught in English and equivalent to a UK H-Level (e.g. Bachelors) degree
• by holding a H-Level (e.g. Bachelors) degree or higher from a university recognised by NARIC in a country where NARIC has stated that all higher education takes place in English
• by holding a H-Level (e.g. Bachelors) degree or above from a DCSF recognised UK university

The SRA will approve providers of an English language test on the basis of clear and transparent criteria. We will also ensure that the approved providers (as a whole) have tests available in a wide range of jurisdictions and that training for the test is readily available in those jurisdictions.

There are specific issues for transferees from the European Economic Area (EEA) who have particular rights to practise their profession within the EEA so as to facilitate their free movement rights. We cannot therefore by law assess their English language competence.

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