Waivers

Introduction

Our Handbook sets out standards we expect of solicitors and firms and the rules we expect them to follow. We may grant a waiver when an individual or firm regulated by us, or affected by our rules or regulations, ask us to decide whether they must comply with that rule or regulation.

Many of our rules and regulations may be waived if an application meets the criteria set out in our guidance. However, we cannot waive rules or regulations

  • that impose obligations required by statute, or other legislation such as EU Directives or Regulations
  • unless our regulatory arrangements give us the power to do so.

We have used waivers to allow new business models and to allow some solicitors working in-house to extend their services beyond the current complex and strict restrictions.

Read further information on SRA Innovate and applying to our Innovation Space

Waiver decision making criteria

We have recently made changes to the criteria we use to make waiver decisions. We have replaced different ‘exceptional circumstances’ tests with a single set of criteria based on the regulatory objectives and if there is a conflict to our public interest purpose.

Before granting a waiver, we will need to be satisfied that in the applicant’s specific circumstances, a waiver is compatible with the regulatory objectives in section 1 of the Legal Services Act 2007. These are:

  • protecting and promoting the public interest
  • supporting the constitutional principle of the rule of law
  • improving access to justice
  • protecting and promoting the interests of consumers
  • promoting competition in the provision of legal services
  • encouraging an independent, strong, diverse and effective legal profession
  • increasing public understanding of the citizen’s legal rights and duties
  • promoting and maintaining adherence to the professional principles.

The waiver being sought may, in particular circumstances, advance some of the regulatory objectives but have an adverse impact on others.

We will then consider any competing objectives and reach a decision that best serves our public interest purpose: namely providing consumers with appropriate protection and supporting the rule of law and administration of justice.

We may grant a waiver to resolve a regulatory conflict between our rules and regulations and those of another body that regulates the applicant or to avoid unnecessary duplication of regulatory requirements.

The decision to provide a waiver is made by specific individuals within the SRA. Details of who can make these decisions are in our Schedule of Delegations.

Once we have made the decision there is no appeal to the waiver process.

Which rules can we waive?

Set of Regulations Rules that can be waived Additional information required with application form
SRA Code of Conduct 2011 All mandatory rules and outcomes that are not a statutory obligation Yes, the current Handbook requires us to consider whether there are ‘exceptional circumstances’ in deciding whether to grant a waiver to this specific set of rules.
SRA Accounts Rules 2011 (Part 6) Part 6: Accountants Reports Yes, if requesting a waiver to obtain an accountants’ report under Rules 32A.1 or 33.5
SRA Accounts Rules 2011 (Part 6) Part 7: Practice as a REL from an office in England and Wales of an Exempt European Practice None
SRA Practice Framework Rules 2011 – ‘qualified to supervise’ Rule 12: Persons who must be ‘qualified to supervise’ Yes
SRA Practice Framework Rules 2011 – other All other provisions that are not a statutory obligation. None
SRA Authorisation Rules 2011 – compliance officers Rule 8.5 (a) and (d): General conditions on authorisation – compliance officers Yes
SRA Authorisation Rules 2011 – other All other provisions that are not a statutory obligation other than the provisions of Rule 8.1 that affect the right of the firm to carry out reserved legal activities or any conditions imposed to allow the firm to be authorised Yes, if requesting a waiver from the requirement to have all managers approved under Rule 8.6(a)
SRA Training Regulation 2014 – Qualification and Provider Regulations All provisions that are not a statutory obligation Any evidence that supports the reason for the request – additional information may be sought after submission
SRA Higher Rights of Audience Regulations 2011 All provisions that are not a statutory obligation Any evidence that supports the reason for the request – additional information may be sought after submission
SRA Indemnity Insurance Rules 2013 All provisions that are not a statutory obligation Yes, if you are seeking to be insured under a non-qualifying policy from a non-participating insurer
SRA Indemnity Rules 2012 All provisions that are not a statutory obligation Any evidence that supports the reason for the request – additional information may be sought after submission
SRA Overseas Rules 2011 Part 3: Overseas accounts rules
Part 4: reporting requirements
None
SRA Financial Services (Conduct of Business) Rules 2001 All provisions that are not a statutory obligation None

Our decision makers will review your application and make a decision, applying our waivers decision making guidance.

Please note that the table above is indicative based on previous waivers we have received. However, it cannot envisage every situation and there will be occasions where we will need additional information to support your application, notwithstanding any guidance to the contrary above. Where we determine additional information is required, we will ask for that once we have assessed your application.

Publishing waiver decisions

We will normally publish a summary of our waiver decisions on our website. This will include:

  • a summary of the application
  • the waiver granted and the reasons for granting it (or not)
  • any conditions we may have decided to attach.

We will not publish the detail of the supporting information provided in the waiver application. Further details of our publication policy can be found in our decision-making guidance.

A firm should include in its application any explanation why publication should not take place, or only to publish the waiver without details of the firm or omitting key details. If we decide to still publish information on the waiver, we will give the firm appropriate notice of our intention to do so.

We will decide on how long we will publish this information on a case-by-case basis. This reflects the range of waiver applications that we might receive.

Report on our historic waiver decisions

We have always allowed some of our rules to be waived in certain circumstances. In granting a waiver the individual or firm does not need to comply with the specific rule or rules to which the waiver applies.

The new single set of simplified criteria for granting waivers we will be using is based on our regulatory objectives and public interest purpose. We set out in our decision-making guidance the criteria and approach we take to requests for waivers. We will also publish more information on all waiver decisions to make sure these decisions are transparent.

As well as outlining our new policy, this report provides a summary of our approach to granting waivers over the past three years, including the number granted , which areas of our rules they concerned and further details on the piloting of our Innovation Space initiative.

Encouraging innovation: transparency about our waiver decisions (PDF 14 pages, 259KB)