EUROPEAN COMMISSION CONSULTATION ON THE PROFESSIONAL QUALIFICATIONS DIRECTIVE RESPONSE OF THE QUALIFICATION COMMITTEE OF THE BAR STANDARDS BOARD 1. This response is provided by the Qualifications Committee of the Bar Standards Board. The Bar Standards Board is the regulatory arm of the General Council of the Bar and so is the competent authority for the approval of applications from lawyers from other members of the European Union who wish to practise at the Bar of England and Wales. Applications are considered by Panel 1 of the Bar Standards Board s Qualifications Committee. 2. The criteria and guidelines applied by Panel 1 are attached at Annex A. The guidelines relate to applications for Registration as a European Lawyer; Applications from Registered European Lawyers; and applications from Qualified European Lawyers. 3. Many of the questions posed by the Consultation document are not germane to the remit of the Qualifications Committee. Introduction 4. In 2010, Panel 1 received 8 applications for Registration as a European Lawyer. 7 were approved. The reason why 1 was not approved was attributable to the persistent failure of the applicant to provide a certificate of good standing from their regulatory body in their Home State. 5. The Qualifications Committee avers that the system for applying for Registration as a European Lawyer is very simple, straightforward, and uncomplicated (in accordance with the design of the application system). It is averred that this imposes minimal barriers to entry (contrary to the apparent perception conveyed in the Consultation on the Professional Qualifications Directive). 6. Para 1.2 of the Consultation makes reference to the creation of a complex jigsaw of procedures facing professionals seeking to move to another Member State, such as to create a barrier to entry. As stated previously, the guidelines applied by the Qualifications Committee are not complex, but are straightforward. 1
7. It is opined that the more significant barriers to entry are likely to be: (i) language the ability to practice as a barrister to a competent level in the host state with understanding of key legal terms/concepts; (ii) lack of knowledge of practice and procedure in England & Wales; and (iii) domestic/family ties militating against transferring to another Member State. 8. The justification for intervention set out at para 2.1 of the Consultation is that authorisations etc although introduced for good reason complicate and slow down the mobility of professionals. The Qualifications Committee avers that this adopts an incorrect premise the existing regime is simple to apply and understand (particularly for Registration as a European Lawyer/transfer as a Qualified European Lawyer). Qu 1: Do you have any suggestions for further improving citizen s access to information on the recognition processes for their professional qualification in another Member State? Qu 2: do you have any suggestions for the simplification of the current recognition procedures? If so, please provide suggestions with supporting evidence. 9. Citizens already have access to information on the recognition process (in so far as this relates to the work overseen by the Qualifications Committee). Information/application forms and guidance are available on the BSB website. The forms are self-explanatory and contain guidance. 10. As for the current recognition procedures, whatever route is pursued by the applicant, the recognition procedures work well, and essentially require confirmation that they are qualified or entitled to practice in another Member State (in respect of applications from Qualified European Lawyers and for Registration as a European Lawyer respectively). Qu 3: Should the Code of Conduct become enforceable? Is there a need to amend the contents of the Code of Conduct? Please specify and provide the reasons for your suggestions. 11. Para 2.2 of the Consultation confirms that the Commission drew up a Code of Conduct for the competent authorities featuring guidelines on how different provisions under the Directive must be interpreted. The Code draws on the case law of the [ECJ] It provides comprehensive guidance on different aspects of the recognition procedure. On the premise that the Code accurately reflects the legal obligations imposed upon authorities, then any requirement to make the Code enforceable is arguably otiose. 2
12. As for aspects of the Code which merely set out good/best practice, it is difficult to see the basis for escalating best practice into mandatory standards. The Consultation does not set out the case for making the Code binding. 13. If the real problem (as set out in the last para of 2.2) is that feedback suggests that the Code is not well known, this could be remedied by setting up a link to the Code in any on-line system administered or used by a competent authority. Compensation Measures: para 2.3 14. For Qualified European Lawyers, at most, the compensation measure imposed is to take the Bar Transfer Test (BTT) (with an opportunity to apply for specific exemptions where appropriate to do so). Upon satisfactory completion of the BTT, the applicant is automatically exempt from pupillage (supervised practise/training). The reference to an adaptation period of three years in para 2.3 is therefore not understood for this category of individual. The adaptation period does not usually take longer than 1 year. Qu 4: Do you have any experience of compensation measures? Do you consider that they could have a deterrent effect, for example as regards the three years duration of an adaptation period? 15. For the reasons set out above, the Qualifications Committee does not accept that any existing compensation measures have an undue deterrent effect. For registration as a European Lawyer, there is no adaptation period required at all. For applications from Qualified European Lawyers, as the attached guidance makes clear, the most that they would be required to pass is the Bar Transfer Test. This does not normally take longer than 1 year to sit. Upon passing the BTT, no further pupillage/training requirement is imposed. 16. For individuals who have already Registered as a European Lawyer in this jurisdiction, provided that they have regularly and effectively pursued practice in the jurisdiction of England & Wales for not less than 3 years, they can apply for qualification in this jurisdiction without undertaking further examination (see guidelines below). Given that such individuals are not required to study for, let alone pass any exam, they require a period to familiarise themselves with the law and practice and procedure in this jurisdiction. Public protection and competence issues render this requirement appropriate. Furthermore, it is open to such applicants to instead opt for the shorter route of applying as a Qualified European Lawyer and sitting the Bar Transfer Test. It is difficult to see how those who consciously decide not to apply through the Qualified 3
European Lawyer route should be treated more generously given that they are choosing this different route to qualification. Qu 5: Do you support the idea of developing Europe-wide codes of conduct on aptitude tests or adaptation periods. 17. The Consultation does not set out the case for why the introduction of a European wide code is desirable or required (in terms of the work overseen by the Qualifications Committee). The current system applied by the Qualifications Committee is easy to understand, clear, and works well. 18. Further, given the differences in legal systems between Member States, substantive law, and practice and procedure, it is difficult to see how a European-wide code would assist would-be applicants. Presumably it would be a very basic code so as to accommodate various differences between Member States. 19. Finally, in circumstances where an applicant wishes to practise in another Member State, it is doubtful how a European-wide code could/would assist them and/or provide the information they require as to how they can apply to a particular Member State. Such applicants would be assisted most by seeking information from the relevant authority in the proposed host state. Qu 6: Do you see a need to include the case law on partial access into the Directive? 20. Panel 1 cannot recall a situation where it has considered that there were major deficiencies in the training of a migrating professional [which] cannot be compensated and that intensive additional training remains strictly necessary as referred to in para 2.3 of the Consultation. If the individual satisfies the initial eligibility criteria, then they are entitled to apply for registration or to transfer as a Qualified European Lawyer provided that other requirements are satisfied. Accordingly, the Qualifications Committee does not consider there to be such a need for case law to be included in discharging its functions. Para 2.4 Facilitating movement of new graduates Qu 7: Do you consider it important to facilitate mobility for graduates who are not yet fully qualified professionals and who seek access to a remunerated traineeship or supervised practice in another Member State? 4
21. It is denied that (in substance) there appears to be a gap for those who are no longer students but not yet fully qualified professionals (para 2.4). Panel 1 is cognisant of the Morgenbesser judgment and has previously given effect to the protection afforded to such a category of applicant. 22. Concern is raised at the suggestion in para 2.4 that instead it appears that it might be more proportionate to accept the person to a traineeship or supervised practice without any further conditions given that he will subsequently be subject to all necessary exams before becoming a fully qualified professional. This proposal fails to appreciate the system for qualifying as a Barrister in England & Wales. The traineeship (pupillage) takes place after the individual has sat the necessary academic and vocational exams. No further examination takes place after commencement of the training/supervised practice. Further, for an individual to benefit from pupillage, they should already have a grounding/understanding in practice and procedure in this jurisdiction. Qu 8: How should the home Member State proceed in case the professional wishes to return after a supervised practice in another Member State? 23. As the individual would be qualified to practise in another Member State, Panel 1 would apply the same approach as for applications from Qualified European Lawyers. The onus would then be on the individual to demonstrate familiarity/knowledge of practice/procedure in this jurisdiction so as to obtain exemptions from the Bar Transfer Test (see guidance attached). 24. It should also be noted that it is currently possible for six of the 12 months pupillage for qualification as a barrister to be completed in another Member State, and that proposed amendments to the Bar Training Regulations would allow the whole of pupillage to be completed in another Member State so long as it is under the supervision of a registered pupil supervisor and in a training organisation approved by the Bar Standards Board. An individual who completed pupillage in this way would thereby become fully entitled to practise as a barrister in England and Wales. Qus 9 & 10 facilitating movement between non-regulating and regulating Member States 25. These questions have little (if any) relevance to the Qualifications Committee. No response is therefore provided to these questions. 5
Qu 11: re: What are your views about the objectives of a European professional card? Should such a card speed up the recognition process? 26. The card may slightly speed up the recognition process if the relevant authorities can have faith that the information contained therein is accurate. However, the professional card should be seen in light of the other matters that individuals have to satisfy in any application process, whether for Registration as a European Lawyer or transferring as a Qualified European Lawyer. In respect of applications from a Qualified European Lawyer, the individual would still have to provide information as to their qualifications, provide certificates, as well as information to show that they are of good character/standing. If an applicant under this route seeks an exemption from any compensation measures, they will still need to provide full particulars in support of any exemption from all/part of the Bar Transfer Test. The existence of a card will is unlikely to save much (if any) time for this category of applicant. 27. In respect of an application for Registration, a certificate - not more than 3 months old as at the date of the application - has to be provided confirming that they are registered to practice in their Home State. This is not an onerous requirement, and it is doubtful that a professional card would speed up what is already a very straightforward application, requiring little detail to be provided. 28. In any event, the problem with a professional card is that it is necessarily static it cannot inform another authority if serious issues of misconduct have been levelled against an individual, or whether they have been subject to disciplinary action in their Home State. These checks are important. On the premise that checks of this type are necessary, and that individuals will obtain attestations of their good standing etc it is therefore questionable as to how much more saving of time the existence of a professional card will actually yield. 29. The card will not increase transparency as fundamental questions will need to be asked/attestations produced. Question 12: do you agree with the proposed features of the card? 30. No for the reasons set out above/the information that the card would not convey to a host state. Question 13: what information would be essential on the card? How could a timely update of such information be organised? 6
31. Given the size of the card (presumably the same size as a credit card), it will be difficult to include all relevant information that a host Member State will require. If the card is to be introduced it should include: name; d.o.b; university qualifications; professional qualification title; date professional qualification attained; and work address as a start. Qu 14: do you think that the title professional card is appropriate? Would the title professional passport be more appropriate? 32. The Committee offers no view on the title of the card. The substantive benefits to be conferred by the card are more important than the title itself. Qu 15: what are your views about introducing the concept of a European curriculum a kind of 28 th regime applicable in addition to national requirements? What conditions could be foreseen for its development? 33. The case for a 28 th regime is not made out in the Consultation. The apparent justification/explanation is set out at para 3.2 as: European curricula for various professions could be developed, for example on the basis of common sets of competencies. They could become a 28 th regime, a European training program which exists in addition to national training programs for a given profession. Under European law, 28 th regimes offer a value added in areas like company law or intellectual property law a European curriculum could exist in parallel to national training programmes rather than replace them 34. The Committee considers this to be unworkable if it is intended that the 28 th regime will be used to facilitate movement to England & Wales. For individuals who wish to register as a European Lawyer in this jurisdiction, it will not impact at all upon the application process. For Qualified European Lawyers, knowledge of company law in this jurisdiction is unlikely to assist an applicant. They will still need to demonstrate familiarity with core concepts of domestic law, practice and procedure, and advocacy style these three elements will largely differ across each jurisdiction, and not something which can be easily covered via a 28 th regime. For these reasons it is difficult to see how compensation measures can be overhauled as suggested, or a 28 th regime would make access easier. Qu 16: to what extent is there a risk of fragmenting markets through excessive numbers of regulated professions etc? 7
35. The Committee offers no view on this question. Qu 17: should lighter regimes for professionals be developed who accompany consumers to another Member State? 36. It is averred that the minimal requirements for applicants to Register as a European Lawyer in this jurisdiction are already light and very easy to satisfy. No justification has been provided for further relaxing these standards further. Professionals can already accompany their consumers by Registering as a European Lawyer. Qu 18: How could the current declaration regime be simplified, in order to reduce unnecessary burdens? It is necessary to require a declaration where the essential part of the services is provided online without declaration? Is it necessary to clarify the terms temporary or occasional etc Qu 19 Qu 20 37. Questions 18 20 have little relevance to the Qualifications Committee. The Committee is unaware of having refused an application because an individual has not provided an annual declaration. Qu 21 24 38. These questions concern training harmonisation issues affecting nurses, midwives, and pharmacists which do not concern the Bar Standards Board. Alternatively, as these questions are not relevant to the operation of the Qualifications Committee, no comment is provided. Qualifications Committee, Bar Standards Board Agreed 11 March 2011 8
APPENDIX A: Criteria for applications Qualified European Lawyers Registered European Lawyers Applications by Registered European Lawyers 1. Applications by Qualified European Lawyers Introduction 1.1 The expression Qualified European Lawyer has the meaning ascribed to it in Part XII of the BTR: Qualified European Lawyer means a person who is a national of a Relevant State and who either: (a) holds a diploma required in a Relevant State for the practice of a legal profession regulated by that State which diploma satisfies the requirements of Regulation 22(1)(a) of the European Qualification Regulations; or (b) satisfies the requirements of Regulation 22(1)(b) of the European Qualification Regulations. 1.2 The completed application form should be accompanied by any supporting documentation and cheque for the requisite fee currently 400 made payable to the General Council of the Bar. Please note that applications will only be processed if made using the version of the appropriate Application Form current at the time the application is made. Rules 1.3 In order to be eligible to apply to the Qualifications Committee as a European lawyer for exemptions from the prescribed Stages of training, the applicant must be a Qualified European Lawyer. The relevant rules are BTR 59, 60, 61, 62, 66, 67, 68, 69. Information and documentation 9
1.4 An applicant will be required to provide the following information and documentation: 1.4.1 Original or certified copy of the diploma/certificate entitling the applicant to practise in the home jurisdiction 1.4.2 Original or certified copy of any other certificates on which the applicant wishes to rely 1.4.3 Any evidence on which the applicant relies to demonstrate that the applicant is of good character and repute 1.4.4 Certified English translations of any documents above that are in a language other than English 1.4.5 Particulars of any previous application which the applicant has made under the BTR or where appropriate under the Consolidated Regulations. Guidelines 1.5 A Qualified European Lawyer will normally be required to take all, or part of, the Bar Transfer Test if (a) the matters covered by the education and training of the applicant differ substantially from those covered by the Academic, Vocational and Professional Stages of training; and (b) the knowledge acquired by the applicant in the course of the applicant s professional experience does not fully cover this substantial difference. 1.6 Any applicant who seeks exemption from all or part of the Bar Transfer Test must submit evidence dealing fully with the matters referred to at 1.5(a) and (b) above. 1.7 However, a practising member of the Bar of Ireland who has been in independent practice for the three years immediately preceding his/her application will not normally be required to take any part of the Bar Transfer Test. 1.8 Applicants approved under the BTR are automatically exempt from the requirement to undertake pupillage. However, the applicant may find it beneficial (and applicants are strongly encouraged) to complete some period of pupillage on a voluntary basis, including attendance at the Advocacy and Practice Management courses. 1.9 The Committee will usually reduce to 6 the number of Qualifying Sessions the applicant is required to attend, and will usually specify that these should be attended within 3 years after Call to the Bar. 10
2. Application for registration as a Registered European Lawyer Introduction 2.1 The expression Registered European Lawyer has the meaning ascribed to it in Part XII of the BTR. Registered European Lawyer means a European Lawyer registered as such by the Board and by an Inn. 2.2 Any applicant who wishes to become a Registered European Lawyer must apply to the Qualifications Committee on the prescribed application form. 2.3 The completed application form should be accompanied by any supporting documentation and cheque for the requisite fee currently 400 made payable to the General Council of the Bar. Please note that applications will only be processed if made using the version of the appropriate Application Form current at the time the application is made. Rules 2.4 The relevant rules governing applications to the Qualifications Committee for registration as a Registered European Lawyer are The Registered European Lawyers Rules. Information and documentation 2.5 Any applicant who wishes to become a Registered European Lawyer may apply to the Qualifications Committee for a direction that he be registered by the Bar Standards Board and by the Inn of the applicant s choice as a Registered European Lawyer. Information and documentation 2.6 All applicants will be required to provide the following information and documentation: 3.5.1. A certificate, not more than three months old, proving the applicant s registration with the competent authority in the applicant s home Member State as a lawyer qualified to practise under the applicant s home country professional title 3.5.2. Evidence to show that the applicant is of good character and repute 3.5.3. Evidence that the applicant is not suspended or prohibited from practising in the applicant s Member State by virtue of professional misconduct or commission of a criminal offence 3.5.4. Evidence that the applicant has not been adjudicated bankrupt or been the subject of a similar order in any jurisdiction 3.5.5. Evidence of the professional body of which the applicant is a member in the 11
applicant s home Member State and of the judicial authority before which the applicant is entitled to practise 3.5.6. Evidence that the applicant holds professional indemnity insurance equivalent to the insurance required by the Bar Code of Conduct 3.5.7. Any documentary evidence to support details given in section 3 of legal activities that the applicant has effectively and regularly pursued in England and Wales since registration as a Registered European Lawyer. 3.5.8. (Only in the case of applicants to whom 3.3.3 above applies) any documentary evidence to support details given of knowledge and professional experience of English law 3.5.9. Certified translations of every certificate and other document on which the applicant relies which is not in the English language. 2.7 The application shall also contain or be accompanied by the following: 2.7.1. A certificate, not more than three months old at the date of receipt of the application by the Qualifications Committee, attesting to the registration of the applicant with the competent authority in the applicant s home State as a lawyer qualified to practise in the applicant s home State under the applicant s home professional title. 2.7.2. A declaration that: (1) the applicant has not on the ground of professional misconduct or the commission of a criminal offence been prohibited from practising in the applicant s home State and is not currently suspended from so practising; (2) no bankruptcy order or directors disqualification order has been made against the applicant and the applicant has not entered into an individual voluntary arrangement with the applicant s creditors; (3) the applicant is not aware of any other circumstances relevant to his fitness to practise under the applicant s home professional title in England and Wales; and (4) the applicant is not registered with the Law Society of England and Wales, of Scotland or of Northern Ireland. 2.8 On receipt of a certificate satisfying the requirements of 2.6.1 above and a declaration satisfying the requirements of 2.6.2 above, the Qualifications Committee shall direct that the applicant be registered by the Bar Council and by one of the Inns as a Registered European Lawyer, and the direction shall be given effect by the Bar Standards Board and by such of the Inns as shall receive the applicant s application for membership. 12
2.9 On making such direction the Qualifications Committee shall inform the competent authority in the applicant s home State by whom the certificate referred to in 2.6.1 above has been made. 2.10 A Registered European Lawyer shall be subject to the Code of Conduct in the manner provided for in Annex B of the Code of Conduct. 2.11 A Registered European Lawyer applying for exemption from the requirement under Annex B of the Code of Conduct to take out professional indemnity insurance shall provide to the Qualifications Committee evidence to establish that the applicant is covered by insurance taken out or a guarantee provided in accordance with the rules of the applicant s home State, and that such insurance or guarantee is equivalent in terms of conditions and extent of cover to the conditions and extent of cover required pursuant to the Code of Conduct. 2.11.1. If the Qualifications Committee is fully satisfied in respect of such matters, the Qualifications Committee may exempt the applicant wholly from the requirement to take out professional indemnity insurance in accordance with the Code of Conduct. 2.11.2. If the Qualifications Committee is satisfied that the equivalence is only partial, the Qualifications Committee may require that additional insurance or an additional guarantee be contracted by the applicant to cover the elements which are not already covered by the insurance or guarantee contracted by the applicant in accordance with the rules of the applicant s home State. 2.12 The insurance requirements of the Code of Conduct are: 2.12.1. Insurance against each and every claim; 2.12.2. At least 500,000 of cover for each claim; 2.12.3. An excess not exceeding 500. 2.13 Insurance may be provided by insurers in England and Wales, or in the applicant s home jurisdiction. Insurance arranged by the applicant s home profession is accepted, provided it covers the applicant s activities in England and Wales, and complies with the standards set out above. 2.14 A Registered European Lawyer may only use the professional title or name conferred by the home jurisdiction, and may not use the title barrister or barrister-at-law. All professional documents must indicate that the practitioner is a Registered European Lawyer and identify the professional body with whom the applicant is registered in the home state. 13
2.15 Registered European Lawyers may appear as advocates in any court or tribunal where the right of audience is unrestricted, but may not appear as advocates in a court where such rights are limited unless they appear together with a barrister or an advocate who does have a right of audience in that court. 14
3. Applications by Registered European Lawyers Introduction 3.1 The expression Registered European Lawyer has the meaning ascribed to it in Part XII of the BTR: Registered European Lawyer means a European Lawyer registered as such by the Board and by an Inn. 3.2 The completed application form should be accompanied by any supporting documentation and cheque for the requisite fee currently 400 made payable to the General Council of the Bar. Please note that applications will only be processed if made using the version of the appropriate Application Form current at the time the application is made. Rules 3.3 In order to be eligible to apply to the Qualifications Committee as a Registered European Lawyer for exemptions from the prescribed Stages of training, the applicant must be a Registered European Lawyer (see section 2 above). The relevant rules governing these applications are BTR 59, 60, 61, 62, 70, 71, 72, 73, 74, 75. Details 3.4 A Registered European Lawyer may apply for exemption from the training normally required by the BTR. In order to be eligible to apply to the Qualifications Committee for exemption, an applicant must: 3.4.1. Have been registered with the General Council of the Bar as a Registered European Lawyer for a period of at least three years; and either 3.4.2. For a period of at least three years have effectively and regularly pursued in England and Wales under a Home Professional Title professional activities in the law of England and Wales; or 3.4.3. For a period of at least three years have effectively and regularly pursued in England and Wales professional activities under a Home Professional Title and for a period of less than three years have effectively and regularly pursued in England and Wales under a Home Professional Title professional activities in the law of England and Wales. 15
Information and documentation 3.5 All applicants will be required to provide the following information and documentation: 3.5.1. A certificate, not more than three months old, proving the applicant s registration with the competent authority in the applicant s home Member State as a lawyer qualified to practise under the applicant s home country professional title 3.5.2. Evidence to show that the applicant is of good character and repute 3.5.3. Evidence that the applicant is not suspended or prohibited from practising in the applicant s Member State by virtue of professional misconduct or commission of a criminal offence 3.5.4. Evidence that the applicant has not been adjudicated bankrupt or been the subject of a similar order in any jurisdiction 3.5.5. Evidence of the professional body of which the applicant is a member in the applicant s home Member State and of the judicial authority before which the applicant is entitled to practise 3.5.6. Evidence that the applicant holds professional indemnity insurance equivalent to the insurance required by the Bar Code of Conduct 3.5.7. Any documentary evidence to support details given in section 3 of legal activities that you have effectively and regularly pursued in England and Wales since registration as a Registered European Lawyer. 3.5.8. (Only in the case of applicants to whom 3.4.3 above applies) any documentary evidence to support details given of knowledge and professional experience of English law 3.5.9. Certified translations of every certificate and other document on which the applicant relies which is not in the English language. Guidelines 3.6 The Qualifications Committee will assess the applicant s effective and regular pursuit of a professional activity in England and Wales in English law. It may request that the applicant provide, orally or in writing, clarification of or further details of the information and documentation provided in sections 3 & 4 of the application form. 3.7 An applicant will not usually be required to pass the Bar Transfer Test unless the Qualifications Committee considers that the applicant is unfit to practise as a barrister. 3.8 Applicants to whom 3.3.3 above applies will be interviewed by the Qualifications Committee in order to consider whether the applicant should be required to pass the Bar Transfer Test. The interview will (a) take into account the professional activities the 16
applicant has pursued while a Registered European Lawyer and any knowledge and professional experience gained of, and any training received in, the law of any part of the United Kingdom and of the rules of professional conduct of the Bar; and (b) assess and verify the applicant s effective and regular pursuit of professional activities and capacity to continue the activities pursued. 3.9 The Committee will usually reduce to 6 the number of Qualifying Sessions the applicant is required to attend, and will usually specify that these should be attended within 3 years after Call to the Bar. 17