Regulation of professions & proportionality in EU law

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On 16 June 2016, the European Commission published an inception impact assessment paper on the ‘Regulation of professions: proportionality test’, noting that: ◊ excessive regulatory barriers to professional entry have negative consequences for job creation, productivity, mobility and the consumer; ◊ the ‘mutual evaluation exercise of regulated professions’ – introduced by the Professional Qualifications Directive – evidences […]

via Regulation of Professions: Preview of the Commission —

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Final Exams – Assessing Competence of Solicitors to be in England and Wales – Part Two – A European perspective on Bar Exams

Part Two: Final Exams – Assessing Competence of Solicitors to be in England and Wales: A European perspective

Many continental European and other Bars have entry exams that precede access to the profession of lawyer. These were often proposed where the Bar or others were worried about the quality of entrants (Russia)(Spain)(Germany), or sometimes the State intervened to decrease what was perceived as an entry barrier to the profession (Poland), or to decrease the price of legal services (Poland), or, more ominously, weaken the strength of the legal profession which was acting as a barrier to inroads into the rule of law (Turkey, where the Bar exam was removed).

Sometimes the assessment by a Bar exam has arguably been over rigorous (Germany) or repeating what has already been assessed at university (Germany, France). In Germany a whole new sector of trainers (the Repetitor) thrives on the needs for coaching to pass the State Bar exams. The method of assessment (SQE) proposed by the SRA, with no exemptions, risks becoming a double assessment of this sort. But, given the novel, if not groundbreaking, proposed designs of the assessments, the SRA could perhaps avoid this charge. The Part 2 (legal skills) assessment, in particular, is likely to be a first in Europe for lawyers. Teaching to a test will still be a risky business, but not so much if the test accurately assesses the skills and knowledge that you want your candidates to possess (i.e. testing higher analytical levels towards the top of Bloom’s taxonomy).

Naturally qualification and competence requirements for a national legal profession should be for that profession to determine, an internationally recognised principle. EU law, in the main, does (can)not venture into questions of the content of training per se. However it does have mutual recognition requirements that are reflected in the SRA consultation paper where it indicates that there will not be ‘exemptions’ to the SQE other than those required by EU legislation (§45). Under EU law incoming potential solicitors who are not using the services or establishment routes (Directives 77/249 and 98/5) to practice law can request that their competences be assessed against the appropriate SRA competence statement. Only where there are significant missing elements can an ‘aptitude test’ be required, and there must be exemptions from assessment for those areas where the migrant has shown they are sufficiently covered. Why could the SRA not consider allowing this for UK trained potential solicitors?

France is also currently reviewing its entry route into the profession of avocat. The reforms are under disussion to alter its initial and exit exams that bracket the post university initial stage of training, and to shorten the whole initial training to a one year duration (from 18 months). The Conseil National des Barreaux (CNB) has already published a Decision that streamlines the training course within its initial training and attempts to  re-orient it to become a very practical experience. The prescribed route though, is still within the Écoles d’Avocats, whose programmes will become more harmonised.  Whilst the reform process in England and Wales is still open, perhaps a shorter period of initial training (period of recognised training (PRT)) could also be considered by the SRA?

The SRA must also be careful to be able to justify properly any new entry barriers that they will be imposing. The European Commission are reviewing and assessing the barriers to entry to regulated professions, and the scope of their reserved activities, following national reports explaining and justifying their existence. See Reviewing entry restrictions and reserved activities of European professions: Transparency for Europe’s professions.  The current process of revision of access routes and entry modes into the English and Welsh profession of solicitor seem to have competence and quality as their motivation.


Décision à charactère normative no 2014-003 adoptée par L’Assemblée général du Conseil National des Barreaux du 12 décembre 2014

Part One: Final Exams – Assessing Competence of Solicitors to be in England and Wales

 

Julian Lonbay

 

Workshop on Lawyers’ Specialisation

Workshop on Lawyers’ Specialisation organised by the Regional Chamber of Legal Advisers in Katowice at Katowice Law Faculty ul. Bankowa 11b, 40-007 Katowice for 15th April 2016

Agenda:

1 Invitation and welcome by Ryszard Ostrowski Dean of Regional Chamber of Legal Advisers in Katowice 10.00-10.10
2 Introductory remarks by Jędrzej Klatka Head of Polish Delegation in CCBE, Chair of CCBE Working Group Towards Model Code of Conduct 10.10-10.20
3 Specialisation in Germany by adw. Sabine Gries-Redeker from Bonn 10.20-11.05
4 Specialisation in France by adw. Christian Leroy from Lyon 11.05-11.50
5 Specialisation in the United Kingdom by prof. Julian Lonbay from Birmingham 11.50-12.35
6 Coffee break 12.35-12.55
7 Specialisation in Spain by adw. Aitzol Asla from Bilbao 12.55-13.40
8 Associations of specialist lawyers in the Netherlands by adw. Dianne Kroezen chairwoman of the Dutch Family Lawyers and Divorce Mediators Association 13.40-14.25
9 Pros and cons of introducing Lawyers’ Specialisation 

(Do General Practitioners have reason to be afraid of specialisation?)

Panel discussion moderated by legal adviser Piotr Bober – former Dean of Regional Chamber of Legal Advisers in Katowice with the participation of: Sabine Gries-Redeker, Christian Leroy, Julian Lonbay, Aitzol Asla, adw. Dianne Kroezen, Ewa Stompor-Nowicka (Vice-President of Polish Bar of Legal Advisers), legal adviser Bazyli Zacharczuk (Chair of the Ethics Commission of the National Council of Legal Advisers), adw. Jacek Giezek (Chair of the Ethics Commission of the Polish Bar Council), adw. Marek Niedużak (Warsaw)

14.25-14.55
10 How to do it ? (How to introduce specialisation scheme step by step ?)

Panel discussion moderated Jędrzej Klatka by with the participation as above

14.55-15.55
11 Closing remarks by legal adviser Jędrzej Klatka 15.55-16.00
12 Lunch 16.00-17.00

Final Exams – Assessing Competence of Solicitors to be in England and Wales

Introduction

So the Solicitors’ Regulation Authority (SRA) has unveiled a consultation paper on the future training and assessment of solicitors in England and Wales – proposing, inter alia,  a standardised competence assessment (The Solicitor Qualifying Exam (SQE)) for all those seeking qualification as a solicitor in England and Wales – its preferred option (§12). The consultation report indicates that the current multitude of  routes to qualification as a solicitor makes comparability of competence / standards  impossible, and points to the 800+ complaints about solicitors upheld by the Solicitors Ombudsman and the £23.8 million pounds of payouts by the SRA Compensation Fund as possible indicators that training for solicitors is inadequate. These admittedly have rather weak links to training.

The development of ‘flexible and innovative, and more affordable training’  are potential gains from the possible de-regulation or semi-de-regulation of the current access routes to the profession of solicitor that a new centralised SQE might permit. These pathway questions will be considered in another SRA consultation in the course of 2016.

Richard Moorhead and Julian Webb have posted blogs on the consultation paper, reflecting on the possible consequences for law schools and other providers of training in the UK. This post, after outlining the main issues (Part One) looks at the proposals from a European perspective (Part Two) (to follow).

Part One: The proposed SQE

When introducing the Statement of Solicitor Competence in 2014 the SRA indicated that it would be consulting about three potential options for assessing the competence of solicitors. These were set out then and §11 of the current consultation reiterates them:

Option 1: Continuing to prescribe a limited number of pathways to qualification, the details of which we specify, which are aligned to the Statement of Solicitor Competence Statement, Statement of Legal Knowledge, and Threshold Standard.  

 Option 2: Rather than prescribing a limited number of pathways, authorising any training pathway developed by a training provider which enables a candidate to demonstrate they can perform the activities set out in the Statement of Solicitor Competence to the standard required in the Threshold Standard.

Option 3: Developing a centralised assessment of competence that all candidates are required to undertake prior to qualification, again aligned to the Statement of Solicitor Competence, Statement of Legal Knowledge and Threshold Standard.

The options are not mutually exclusive and so various routes and requirements for candidates could ultimately be imposed before they would become eligible to take the SQE.

The SQE

The introduction of the consultation paper states:

This common professional assessment, the Solicitors Qualifying Examination (SQE), would consist of a Part 1 assessment of knowledge, and a Part 2 assessment of skills.

Under the proposals, Part 1, taken first, will comprise a Legal knowledge Assessment and Part 2 a Practical Legal Skills Assessment will follow. Both assessments will be modularised thus allowing flexibility for those in training.  The two parts will be equally weighted. In 2016 the SRA will publish a detailed Assessment Framework document that will ‘help inform the design of future education and training programme’. The legal knowledge element covered in Part 1, and assessed by ‘computer-based objective testing’,  will include the following subjects:

… ethics and professional conduct, wills and probate, taxation, business law and practice, property law, torts, criminal law and evidence, criminal litigation, civil litigation, contract law, trusts and equitable wrongs, constitutional law, EU law, human rights, and the English legal system. (§41)

The Part 2 assessments will

use standardised practical legal tasks, including role plays with standardised clients for the oral skills and case studies to assess the written skills, to assess the application of knowledge and skills in a range of contexts. The contexts are: civil litigation, criminal litigation, property law and practice, wills and probate, law of organisations. Each skill area must be assessed twice, in two different contexts. Across all assessments, candidates must cover three out of the five contexts, including both contentious and non-contentious elements. (§42)

The Part 2 assessment will cover the areas where solicitors have “reserved activities” but not all of these will be assessed, just three out of five areas. Even then, some firms that provide training might have to ‘wastefully’ provide additional training (for areas where they do not in fact practice) (§49). The skills assessed will include:

  • interviewing and advising
  • advocacy/oral presentation
  • negotiation 
  • writing 
  • drafting
  • legal research

The consultation paper also considers the costs of the new regime for trainees (likely cheaper – but as yet unknown) and the impact of the possible new scheme on diversity of the profession (possibly more transparent).




The SRA Consultation paper Training for Tomorrow: assessing competence is available here (PDF)(60 pages). This Training for Tomorrow initiative consultation is open until March 4th 2016. Any changes to come, are not yet decided upon, and would not be ready until at least 2018-2019. Responses to the consultation will be very welcomed by the SRA.

Part Two: A European perspective

Reviewing entry restrictions and reserved activities of European professions

Transparency for Europe’s professions

Under the amended Professional Qualifications Directive 2005/36/EC Member States have a duty to review their  legislation and regulations dealing with access to and pursuit of their professions. The review must examine the justifications for limiting access to perform reserved activities to a particular professional group, against permissible criteria. The Member States are also supposed to analyse the barriers to entry to any profession and to consider alternative less restrictive regulatory mechanisms to protect the interests that the barriers are designed to serve. This will involve a profession by profession analysis of the regulations that restrict access to that profession. Issues such as the scope and number of reserved activities will be analysed in these reviews. These requirements are set out in the new Article 59(3) (introduced by Directive 2013/55/EU):

Article 59 (3) of Directive 2005/36/EC

 Member States shall examine whether requirements under their legal system restricting the access to a profession or its pursuit to the holders of a specific professional qualification, including the use of professional titles and the professional activities allowed under such title, referred to in this Article as ‘requirements’ are compatible with the following principles:

(a)

requirements must be neither directly nor indirectly discriminatory on the basis of nationality or residence;

(b)

requirements must be justified by overriding reasons of general interest;

(c)

requirements must be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary to attain that objective.

These reviews are supposed to be completed by 18 January 2016. Once the national reviews are complete each Member State sends its report to the European Commission with an explanation and justification for any reserved activities/entry barriers. There is an on-going notification requirement of any new restrictions in the future (every two years).

These national reports will be sent to all the other Member States who will have six months to comment and the European Commission will then consult the professions concerned (probably in the case of lawyers via the CCBE – the Council of Bars and Law Societies of Europe).

In fact this process was kick started in November 2013 when the European Commission started a process of evaluation of entry requirements to the professions. Each Member State (MS) was supposed to have a national action plan in place by April 2015. These plans will review, at the national level, qualification requirements imposed on those wishing to join any regulated professions.

Since then the European Commission Communication on Upgrading the Single Market: more opportunities for people and business specifically refers to this mutual self-evaluation noting that

the regulation of similar professions varies substantially between Member States, as do reserves of activities.

It is expected that professions with major entry barriers or large areas of reserved activities will be under pressure to reform their regulatory systems. The European Commission noted that a major difference was that some States relied more on consumer protection guarantees, whilst other preferred regulatory controls on entry and reserved activities.

This European process may, in part,  have prompted the HM Treasury’s review of regulation in the UK where they say, of legal services:

The government will further reduce barriers so that it is easier for alternative business structures, such as supermarkets and estate agents, to offer legal services like conveyancing, probate and litigation in England and Wales. (A better deal: boosting competition to bring down bills for families and firms p.6)

The UK Government plans to launch a consultation by spring 2016 on

removing barriers to entry for alternative business models in legal services, and on making legal service regulators independent from their representative bodies. This will create a fairer, more balanced regulatory regime for England and Wales that encourages competition, making it easier for businesses such as supermarkets and estate agents among others, to offer legal services like conveyancing, probate and litigation. (A better deal p.12)

We shall see what comes of it and whether these national reports and reviews will be published and accessible in a timely fashion.


Text of Article 59 of Directive 2005/36/EC

Article 59 Transparency

  1. Member States shall notify to the Commission a list of existing regulated professions, specifying the activities covered by each profession, and a list of regulated education and training, and training with a special structure, referred to in point (c)(ii) of Article 11, in their territory by 18 January 2016. Any change to those lists shall also be notified to the Commission without undue delay. The Commission shall set up and maintain a publicly available database of regulated professions, including a general description of activities covered by each profession.
  2. By 18 January 2016, Member States shall notify to the Commission the list of professions for which a prior check of qualifications is necessary under Article 7(4). Member States shall provide the Commission with a specific justification for the inclusion of each of those professions on that list.
  3. Member States shall examine whether requirements under their legal system restricting the access to a profession or its pursuit to the holders of a specific professional qualification, including the use of professional titles and the professional activities allowed under such title, referred to in this Article as ‘requirements’ are compatible with the following principles:
(a) requirements must be neither directly nor indirectly discriminatory on the basis of nationality or residence;
(b) requirements must be justified by overriding reasons of general interest;
(c) requirements must be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary to attain that objective.
  1. Paragraph 1 shall also apply to professions regulated in a Member State by an association or organisation within the meaning of Article 3(2) and any requirements for membership of those associations or organisations.
  2. By 18 January 2016, Member States shall provide the Commission with information on the requirements they intend to maintain and the reasons for considering that those requirements comply with paragraph 3. Member States shall provide information on the requirements they subsequently introduced, and the reasons for considering that those requirements comply with paragraph 3, within six months of the adoption of the measure.
  3. By 18 January 2016, and every two years thereafter, Member States shall also submit a report to the Commission about the requirements which have been removed or made less stringent.
  4. The Commission shall forward the reports referred to in paragraph 6 to the other Member States which shall submit their observations within six months. Within the same period of six months, the Commission shall consult interested parties, including the professions concerned.
  5. The Commission shall provide a summary report based on the information provided by Member States to the Group of Coordinators established under Commission Decision 2007/172/EC of 19 March 2007 setting up the group of coordinators for the recognition of professional qualifications, which may make observations.
  6. In light of the observations provided for in paragraphs 7 and 8, the Commission shall, by 18 January 2017, submit its final findings to the European Parliament and the Council, accompanied where appropriate by proposals for further initiatives.

Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System ( ‘the IMI Regulation’ )

UK HM Treasury Paper, A better deal: boosting competition to bring down bills for families and firms (Cm 9164, November 2015)

European Commission, Upgrading the Single Market: more opportunities for people and business  COM(15) 550 final

European Commission, Transparency and mutual evaluation of regulated professions,  See diagram below.

 

timetable-for-the-transparency-and-mutual-evaluation_en

Julian Lonbay

Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified primacy of EU law

The Supreme Court’s welcome attack on the Court of Justice

British Government and the Constitution

The UK Supreme Court’s judgment in the HS2 case marks the year’s first big constitutional case. The case was brought by campaign groups hostile to (or otherwise critical of) the Government’s plans for a new high-speed rail-link between London, the Midlands, the north of England and (perhaps, one of these days) Scotland. (In a stroke of unintended irony I read the judgment on a Virgin Pendolino yesterday travelling from Euston to Glasgow, a journey which at the moment takes about four and a half hours.) The claim was that the Government’s chosen means of implementing HS2 were incompatible with EU law governing the “environmental impact” of planning decisions. A panel of seven Justices of the Supreme Court was unanimous in holding that there was no breach of the EU directives and that, in the circumstances, there was no need for the matter to be referred to the Court of Justice…

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