There are only a few days left to respond to the Solicitors Regulation Authority’s consultation on the Solicitors Qualifying Examination (SQE), which ends on 26 July.
It raises a question about regulatory consultations during the period of the Brexit negotiations, when the outcome of our future relationship with Europe is not known. Indeed, it raises the same question about the wider new landscape we are entering, of free trade agreements (FTAs) with all comers.
To understand the background about the impact of Brexit and FTAs in general on this consultation, we need to understand how lawyers’ qualifications are recognised in the EU. They are treated differently to other liberal professions, such as doctors or architects. The other liberal professions rely for their recognition on a recognition of ’qualifications’, but lawyers uniquely rely on a recognition of ’title’.
A recognition based on ’qualifications’ looks at the route used to obtain the professional title, and those who did not study this or that subject may be turned down by the other member state. A recognition based on ’title’, on the other hand, does not look behind the title to see what route was taken, or what subjects were studied: the title is trusted on its own, regardless of route.
The route to qualification as a solicitor in England and Wales has always been seen as a bit odd in many member states (and beyond). First, it is rather short, being able to be achieved in just six years from the beginning of undergraduate university study. In Austria, at the other end of the scale, it takes around nine years to qualify. Second, it relies heavily on the practical, whereas the continental style emphasises academic study to a much greater extent. Finally, there is no need for a law degree, since to date a conversion course can be taken. The UK is not alone in not requiring a law degree, but it raises eyebrows.
For so long as mutual recognition continues on the basis of title, and for so long as the UK is a member of the EU, there is nothing that anyone can do about these so-called oddities.
But we are leaving the EU, and don’t yet know the outcome of the negotiations on mutual recognition of professional qualifications. Both the EU and the UK’s references to it have necessarily so far been in relation to the Withdrawal Agreement (i.e. the divorce), and not the future trading relationship. Therefore, both positions understandably refer to qualifications already obtained, or in the process of being obtained.
The SRA says that its new SQE will not come into operation before September 2020, and so we can be pretty sure that it will not be covered by the Withdrawal Agreement. So far, so good. But that does not mean we need not worry about any future ill-effects, because we should also be thinking about our future trading relationship after withdrawal, and indeed about FTAs with other countries.
What is going to happen to the European mutual recognition of lawyers’ qualifications, when those qualifications were obtained after withdrawal? No-one knows. The most important question is whether such recognition, if it continues, will be on the basis of ’qualifications’ or ’title’. I find it highly doubtful that it will be on the basis of title, since that is such an unusual basis, granted only because of the high level of mutual trust that exists within a single trading bloc governed by a single final court.
And so we come to the nub. One of the changes that the SRA is proposing in its SQE consultation is to remove the requirement that future solicitors should have a qualifying law degree or equivalent. From now on, it will be any degree or equivalent.
It may seem a small change, but it could prove significant change to those jurisdictions unhappy with lawyers qualifying without a law degree. It may make it more difficult for such lawyers in the future to have their qualifications recognised so as to practise in other European countries, or beyond. It is impossible to tell at this stage. Similarly, the SRA’s proposal for automatic recognition of all EU qualifications, which I welcome, might better be reconsidered then, when we know on what basis qualifications will be treated.
In other words, all new regulatory proposals should be considered in the light of possible future post-Brexit requirements in the EU and elsewhere. The shape of the Brexit settlement, both withdrawal and, more importantly, future trading relationship, should be known within two years. Is it more sensible for the SRA, and other regulators considering similar changes, to wait until then before proceeding? No-one wants to make it more difficult for solicitors to re-qualify or otherwise be recognised abroad after Brexit.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council.