Rees: Ambitious for further regulation
Experienced CILEX advocates will be able to apply for higher rights of audience (HRA) in civil and criminal work soon after the Legal Services Board (LSB) approved the move.
Though the Bar Council and Criminal Bar Association strongly attacked the proposed training for the rights, the oversight regulator noted that “the requirements exceed those required for solicitor-advocates”.
Qualified CILEX practitioners can currently obtain litigation and advocacy rights for the lower courts and will not be able to apply for HRA until they have had these for a year.
The LSB is required to judge such applications on the basis of whether there are grounds for refusing them. Although it has highly critical of the quality of CILEX Regulation Ltd’s (CRL) application, and listed several areas where CRL needed to do more work in implementing the scheme, the LSB found there was no reason to refuse it.
The training has been revised since the initial application from two days to five, consisting of two days of written training, two days of practical training and one assessment day.
CRL said that, taken as a whole from starting the CILEX qualification, this pathway equated to a minimum of six years of qualifications, training and experience prior to gaining HRA.
It does not intend to offer HRA in relation to family litigation, as these cases tended to be dealt with in the lower courts, nor for immigration, in line with the Solicitors Regulation Authority (SRA).
The LSB said: “We consider that, based on CRL’s explanation of the prior training and experience required before becoming eligible to undertake the HRA assessment, and the quality assurance measures that are built into the assessment itself (including, but not limited to, the requirement to submit a portfolio of three cases in which advocacy is undertaken), CRL’s proposed training pathway provides a sufficient basis for training CRL members to be awarded HRA.
“In particular, we note that the requirements exceed those required for solicitor-advocates – who are not required to demonstrate their advocacy skills by way of a portfolio.”
CRL forecast that the numbers of CILEX lawyers seeking HRA would be small in the first few years – around 10-20 in each of the first five years – with only 306 people currently meeting the requirements to apply for the additional training (out of nearly 7,000 Fellows). CILEX supported the application.
Among the requirements from the LSB in approving it were that all newly qualified HRA members should be included in CRL’s CPD monitoring for at least three years, that CRL “identify and analyse areas of risks to consumers and identify appropriate mitigations”, and that it publish a comprehensive review two years after implementation.
CRL said it was “very pleased” with the decision and was in negotiations with a provider to deliver the training and assessments.
The LSB said it wanted to “put on record our disappointment at the poor quality of the application submitted by CRL in this matter”.
It explained: “Important analysis and evidence in relation to likely take-up of the new regulatory arrangements was not included. Nor was proper information about impacts on the wider profession, or on equality and diversity impacts.
“CRL had drawn inaccurate conclusions from some of their own data. This required follow-up questions and analysis by LSB staff that should have been unnecessary.”
It reminded CRL that it could reject applications in future in such circumstances.
Separately, the LSB approved CILEX and CRL’s application for approval of practising fees in 2024 – keeping them the same as 2023, with Fellows paying £371 – but was again critical of how it was made.
“The financial information provided in the application was not sufficient and required a number of follow-up enquiries to establish sufficient clarity to complete our assessment of this application,” it said.
“For next year’s application, we expect significantly more clarity and transparency around the financial information contained in the application.”
The practising fees will generate income of £2.6m, 60% of which will go the CRL, 32% to CILEX and the rest to the other bodies funded through practising fees, including the LSB and Legal Ombudsman.
CRL has also published its 2024 business plan, which said it would consult in the spring on a new strategy for 2025-2027, even though it is looking increasingly likely that CILEX will seek to change regulator to the SRA – which will be subject to LSB approval.
The business plan said CRL would “engage constructively from a position of insight and experience with CILEX and the SRA on proposals to change the current regulatory arrangements to ensure the consumer and public protection interest remains paramount”.
CRL chair Jonathan Rees said: “We remain ambitious for further innovation in the way we regulate CILEX members and have set out a progressive programme for 2024 and into 2025 and beyond, as we work towards full financial and operational independence, pursue innovative models to minimise the regulatory burden, champion fair access and enhance the information available to consumers to improve accessibility to legal services.
“In particular we will look at the role of those non-authorised lawyers providing legal services, building on our successful independent regulation of CILEX paralegals. We will also work with others on how to bolster strong independent regulation free from vested interest interference.”
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