Opinions split on SRA’s centralised higher rights test

SRA: Further stakeholder engagement planned

Plans by the Solicitors Regulation Authority (SRA) to introduce a centralised test for solicitors wanting higher rights of audience (HRA) have divided opinions among organisations and individual solicitors.

There was strong opposition to one aspect of the plans – a new requirement on those practising in the youth courts to have the HRA qualification when acting in any case which would go to the Crown Court if brought against an adult.

The SRA launched a consultation on the plans in August. Publishing responses to the consultation, the regulator said it would not be revealing its own response until later this year to allow time for “further stakeholder engagement”.

Some 22 of the 61 responses received backed the proposal to introduce a single HRA assessment provider, with 21 against and the rest failing to respond or undecided.

The regulator said: “Those that agreed did so on the basis it would ensure greater assessment robustness, consistency, accuracy and fairness.

“Some respondents also felt that a single provider model offered a clearer and simpler assessment pathway for solicitors seeking higher rights.”

The Solicitors Association of Higher Court Advocates and the Youth Practitioners Association offered alternative approaches, however, and suggested the SRA could improve assessment robustness and consistency through greater standardisation of teaching and assessment processes, while retaining multiple suppliers.

Most respondents (42) disagreed with the SRA that solicitors practising in the youth courts should be required to have the SRA qualification when acting in any case which would go to the Crown Court if brought against an adult.

They warned that the new rule could “damage the quality and supply” of youth court solicitors for a number of reasons.

Some argued that “experienced and competent” youth court solicitors would be replaced by those with the HRA qualification but inexperienced in youth work, and there would be a “financial impact” on small firms employing youth court solicitors without higher rights because they would have to use counsel.

Others said higher rights standards were “not aligned with the skills, knowledge and experience” required for competent practice in the youth courts, or that different specific standards should be developed.

It was also felt that the HRA requirement was “unnecessary” as it would duplicate existing quality assurance regimes used by the Crown Prosecution Service or Legal Aid Agency.

The SRA said the “majority of respondents” agreed that trainee solicitors should not be able to take the revised HRA test.

The regulator said the current situation, with trainee solicitors taking the HRA assessment as an elective on the professional skills course for rights they could only use after admission, was not “appropriate”.

Most respondents (38) agreed, with only nine opposed.

The Criminal Law Solicitors Association, for example, felt that a solicitor seeking a higher rights qualification would benefit from experience and exposure to advocacy in practice before attempting the assessment.

“A few respondents went further and suggested that we should introduce requirements that the HRA assessment can only be attempted by solicitors with at least two years’ advocacy practice post-qualification experience.”

There was strong support (44 to three) for the SRA’s view that there should be no new restriction on solicitors’ rights of audience in the lower courts until they had been assessed in witness handling.

“Whilst concerns about the standard of advocacy are persistent, the evidence is largely qualitative, and it is difficult to establish whether poor advocacy is a widespread problem.

“Given that this is the case, there is a risk that a broad restriction on all solicitors advocating in the lower courts, irrespective of their competence, is not targeted nor proportionate and could act as a barrier to practising advocacy. This could restrict access to justice.”

The Legal Services Consumer Panel disagreed, arguing that the potential risk of detriment to even a small number of clients as a result of poor advocacy justified requiring that solicitors who wish to work in the magistrates’ court and upwards should be assessed in witness handling.

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