Proposed changes to the qualified lawyers transfer regulations are causing quite a stir, especially among non-EU applicants. Rupert White reports


Though the draft guidelines for changes to the qualified lawyers transfer regulations (QLTR) will not now be imposed by the time this article goes to print, lawyers and other interested parties have only until 14 April to participate in the consultation over changes proposed by the Solicitors Regulation Authority (SRA).



What those changes are and why they need to be made is causing a stir in the wider world, especially in the normally discrete areas of training and outsourcing. The stir has been such that the SRA felt moved to postpone the consultation’s end, citing feedback that ‘revealed some significant concerns, and several misunderstandings about the proposed interim requirements’.



The changes are also likely to be so far-reaching that the SRA predicts they will not be finally established and in force for about two years. The confused and mixed reactions the authority reports now merely relate to the proposed interim changes.



The SRA says the system has ‘significant weaknesses’, that the guidelines are ‘vague in some areas’, that the system is ‘mismatched’ with the requirements for solicitors qualifying in England and Wales, and that it currently only allows applicants from a restricted list of countries with ‘historical links with the UK legal system’.



The SRA also gives as a key reason for change the fact that ‘there is currently no explicit requirement for non-EU applicants to have any experience at all of practice in the law of England and Wales’ – even though under the interim measures there will still not be a requirement to have any experience of practice in this country.



This lack of ‘home turf’ experience, says the SRA, is ‘hard to justify in the public interest’ and may place overseas lawyers in a ‘vulnerable position when they start to practise’. However, it is precisely this lack of the need to have done work experience here in Britain that has allowed a burgeoning outsourcing industry to flourish in places such as India and even Mauritius.



Once the preserve solely of IT in the context of law firms, outsourcing is becoming an attractive option for both in-house legal teams and even legal practices. Increasingly, areas from contract review to patent work are gradually being ‘offshored’ – that is, outsourced abroad.



But the test to qualify under the QLTR, the qualified lawyers transfer test (QLTT), is to be restricted for the next two years – no further test providers will be allowed to take on work, and existing testers will not be able to open further centres until the two-year process is finished. Explains the SRA: ‘We do not know what exactly will be required of future transferees, although we do know that we want the system to be more aligned to the expected outcomes for solicitors qualifying here. We believe it would be unfair to allow more test providers into the market place until the new arrangements have been agreed.’



This seems to have precipitated a rush of people to take the test before the consultation date passes. That has been compounded by confusion over another part of the interim regulations – a fear that lawyers will have to spend a year in England or Wales in a legal practice to qualify.



This is certainly what one leaflet passed to the Gazette by a concerned outsourcing company seems to say, while encouraging applicants to apply before the March deadline. The leaflet warns Indian lawyers and law students that from March 2008 Indian lawyers ‘may not qualify’ under the changed regulations. Taking this particular company’s test in India, the leaflet adds, is also a rung on the ladder for working for legal outsourcing firms in India – all without coming to the UK.



So is it true that the changes will mean all lawyers hoping to pass the QLTT will have to spend a year working for a firm in England or Wales? No, says the SRA. Though the draft regulations seem to say that qualifying lawyers will, after the changes, need ‘experience of the law in England and Wales’, that experience ‘need not be undertaken in England and Wales’. The SRA is certainly not going to rule out qualifications gained solely through foreign experience at the moment.



Another question raised about the need for changes to the QLTR is that increasing numbers of foreign-trained lawyers are not up to the standard expected. The implication has been, even in letters to the Gazette, that the quality of lawyers from some areas of the world has forced a rethink.



If the statistics are anything to go by, the test applied under the QLTR, the QLTT, serves a legal purpose similar to that played by VW camper vans and the tube line to Earls Court – according to the Law Society’s 2007 annual report, most lawyers who qualified under the QLTR in 2006/07 (270) originally qualified in either Australia or New Zealand.



It would seem that the overhaul of the QLTR is as much to do with its obsolescence, according to many sources, as it is to do with whether QLTT qualifiers are as good as domestically trained lawyers.



The SRA does, nevertheless, seem concerned about the quality of QLTT lawyers. The full review of the QLTR is being conducted, it tells the Gazette, for the reasons set out in the consultation paper – to better ensure equivalence of qualification. ‘We are not conducting the review because of concerns about any particular jurisdiction,’ said a spokeswoman. But, she added, ‘we are aware that transferees are more likely to be the subject of professional disciplinary sanctions than home-qualified solicitors. The reasons for this are unclear and the SRA will be addressing this separately’.



The SRA’s approach has raised hackles within the profession – the College of Law reportedly instructed Rabinder Singh QC, of Matrix Chambers, over the matter. Singh had reportedly warned that the SRA’s measures are ‘potentially in breach of the Race Relations Act and the Competition Act’.



This has not been the only criticism – if changes to the QLTT dissuade people from India applying, for example, they may be more likely to go instead to the US or Canada. Whether this would really happen is of course not known, but considering that the situation is confused enough to warrant pushing the consultation back, Indian lawyers may well fear not being able to qualify. City lawyers have warned that this might be bad for UK firms in the international battle for talent.



One fifth of entrants to the profession over the period 1995 to 2005 came via the QLTT, which makes it a very popular route. But a quarter of these, says the SRA, have never taken out practising certificates – so they have never practised here using their qualifications. The SRA is concerned about this disparity.



There certainly seems to be broad agreement, meanwhile, that the QLTR needs updating for business reasons. Business law, for example, is the area of practice most frequently cited as their area of work by solicitors who have qualified under the QLTR – but this is not a subject of the QLTT. So there needs to be consistency in training alongside the stated aim of opening up the QLTT to more countries.



Olivier Morel, a partner at Cripps Harries Hall and a dual-qualified solicitor and French avocat, says he chose a different route into law here precisely because of this inconsistency.



'I did not take the QLTT,’ he says. ‘I considered it and realised the topics covered did not really match the needs of a modern commercial lawyer. I went instead for the European Directive on the Right of Establishment [which offers the possibility to qualify as a solicitor to lawyers qualified under another EU jurisdiction and who demonstrate at least three years of continuous legal work in England]. As such, I had another option and another route into practising which I felt suited me and the needs of my clients better.’



But Morel’s route into practising law here would not of course be open to those outside the EU. ‘It is important that there is an alternative route in to the English profession for those outside Europe,’ he adds, ‘given the increasing importance of emerging economies such as China and India... an experience of different cultures and legal jurisdictions both within and outside the EU is an asset which law firms can sell to their clients.’



The quality of English lawyers is high by international standards, says Morel, but he backs the need for changes to the QLTR. ‘Only through constant monitoring and improvement can we ensure that standards are at least maintained, if not increased,’ he says.



For now, however, there is still time to have your say. And Indian outsourcing companies need not worry – at least for a couple of years.