Disparity in entry exams reveal Law Society preference of EU entrants over British lawyers in admissions to Scots legal profession

Today, I am featuring an article which shows differences on admissions policy within the legal profession itself, and how the Law Society of Scotland can also discriminate against solicitors, not only clients ...

The Law Society of Scotland, as we know, not only controls Scots access to justice by forcing the public to use a member legal firm and solicitor, it also flexes a strict control over entry to the Scots legal profession. This unjust control the Law Society holds over access to justice, and access of entry into the legal services market, is one of the key areas identified for reform by consumer organisations and the OFT in recent recommendations and public campaigns to provide a better deal for Scots when having to use the services of a lawyer.

However, in a situation which has just come to light, the Law Society seems to have embarked on a policy of denial of entry to the profession of solicitors from the rest of the UK who wish to enter the Scots legal services market, in preference to solicitors from the European Union for some reason ...

This policy does seem to fly in the face of recent deals which have seen the likes of Scots accountants allowed to practice in England & Wales, through entry exams & additional qualifications, and not to mention the substantial increase in Scots solicitors heading south of the border to practice in England & Wales, and further afield.

Emerging reports from solicitors in other parts of Britain who are trying to enter the Scottish market show that a brick wall of silence is being applied to their queries & applications by the Law Society of Scotland's Admissions Committee, which is now caught up in a scenario of potential discrimination against solicitors from the rest of the UK who wish to enter the Scots legal market.

To explain a little more about this situation, there exists a procedure by which English/Welsh and Northern Ireland solicitors may become admitted as solicitors in Scotland, the so-called Intra-UK Transfer Test. The examination was developed nearly 20 years ago and it is comprised of three written papers. The examination is administered in two 'Diets', one in March and the other in November.

Additionally, with the integration of the UK into the European Union, several directives have since been introduced which permit EU nationals who are qualified as lawyers in a 'home' member state to establish practice in a 'host' member state. The LSS introduced an EU Aptitude Test to accommodate EU qualified lawyers who would wish to qualify for admission as solicitors in Scotland by examination.

It is notable from a quick scan of the Law Society's recent intakes of admissions that solicitors from the EU do seem to have an easier entry into the Scots legal market than colleagues from south of the border, and some speculate this may be because the Law Society itself feels EU solicitors can be easier held to it's own policy of control over the Scots legal profession, than their British counterparts from England, Wales & Northern Ireland, who are seem as an element by some in high places as 'more difficult to control' ...

A solicitor queries the Law Society of Scotland's Admissions Committee, raising several questions about the content, structure and differences between the Intra-UK Transfer Test and the Aptitude Test :

"Dear Sirs,

the Intra UK Transfer Test ('IUKTT') and the Aptitude Test for EU Qualified Lawyers ('ATEU') are administered by the Law Society of Scotland in order to permit solicitors qualified in England/Wales/Northern Ireland and EU nationals who are qualified as lawyers in EU member states to be admitted as solicitors in Scotland. Close inspection of the content of both the IUKTT and the ATEU has raised questions about the purpose and fairness of maintaining two separate examinations for access to the single profession.

The IUKTT and the ATEU place different emphasis on examination content. In some instances it is fairly obvious why there is different emphasis, such as the requirement for ATEU candidates to sit a paper on professional conduct and accounts. However, it is not clear why the content is distinct in the following two instances:

a) IUKTT candidates are required to answer a compulsory drafting question in Paper I Conveyancing with Trusts and Succession and ATEU candidates are not. What is the justification in exacting this requirement from IUKTT candidates when ATEU candidates are not required to demonstrate their drafting skills?

b) IUKTT candidates are required to answer a compulsory question on Scots Criminal Law in Paper II and ATEU candidates are not. It appears that ATEU candidates are not required to demonstrate any detailed knowledge of Scots Criminal Law at all.

Arguably the two most important areas of law in which a solicitor is likely to be involved as a practitioner are conveyancing and criminal representation. IUKTT candidates are solicitors and may have practiced largely as conveyancers. This cannot be said of ATEU candidates, who will not have acted as conveyancers in their home jurisdictions. Conveyancing is predominantly effected by notaries in EU member states, who are publicly appointed officials and not lawyers in private practice.

Similarly, with respect to criminal representation, the role of solicitors in Scotland is vital because of their rights of audience in the Sheriff Court, where most criminal cases are heard. IUKTT candidates are familiar with many of the criminal law concepts which Scottish solicitors encounter in practice on a daily basis. IUKTT candidates understand the essential nature of case law in the development, interpretation and application of law in general and criminal law in particular.

Much of Scots criminal procedure is comprehensible to IUKTT candidates. Unfortunately, the same cannot be said for ATEU candidates, who should not be expected to have any grip on the essential nature of Scottish criminal law. Although EU lawyers will have studied criminal law during their undergraduate law courses, the approach taken towards criminal law and procedure in Continental EU jurisdictions is very different to that taken in England and Scotland.

In EU jurisdictions case law, together with learned legal writings, is illustrative and not a source of the law. The authoritative source of all criminal law is a penal code which will have been passed by a legislature. The role of professional judges in EU jurisdictions is restricted to the application of the penal code and the code of criminal procedure; they do not make the law. For an ATEU lawyer, the representation of an accused in the Sheriff Court would be a quite distinct and dare-say overwhelming experience.

There are varying examination conditions for IUKTT and ATEU candidates:

1. ATEU candidates are given 45 minutes to answer examination questions in Papers I & II whilst IUKTT candidates are given 40 minutes to answer examination questions in their respective papers. Why?

2. ATEU candidates are permitted the option of attempting the four papers over two sittings, which shall be deemed as one 'Diet', whilst IUKTT candidates are not. If an ATEU candidate should be exempted from sitting Paper III, EU Law and Institutions, why would he be permitted to attempt three papers over two sittings when an IUKTT candidate is not allowed to do the same?

3. IUKTT candidates qualified as solicitors prior to 01.01.1992 are not obliged to sit Paper III European Community Law and Institutions. The UK became a member of the EEC (EU) in 1973. It is salient that EU Law and Institutions is moreover a compulsory component of law courses at universities in Continental Europe.

The Law Society of England & Wales instituted a standardised Qualified Lawyers Transfer Test. It is noteworthy that Scottish solicitors are eligible for admission as solicitors in England if they pass just one 3 hour 'open book' examination paper on Property. The examination on Property will be the same for a Scottish solicitor as for a New York attorney or a French advocate. Whilst the number of papers that a candidate must sit varies depending on where a candidate is admitted, the content of the papers has been standardised and is essentially fair to all who sit them. The Law Society of England & Wales does not require a Scottish solicitor to sit a different examination from an EU qualified lawyer and he is not a case for special treatment, since he is subject to the same examination conditions as all candidates.

The IUKTT and ATEU are the points of access for those who wish to re-qualify as solicitors in Scotland. Unfortunately, the present arrangements appear to be flawed because they do not provide a level playing field for all candidates. I can only guess as to why there are essential differences in content for Papers I and II of the IUKTT and ATEU. Maybe because the IUKTT originated before the introduction of the EU Directive, its syllabus has not been reviewed in conjunction with the development of the ATEU? Or perhaps it has been assumed that ATEU candidates will not attempt to undertake conveyancing or criminal representation once admitted to the Roll in Scotland?

Whatever the reason, the type of solicitor who will be produced at the end of the re-qualification process will undoubtedly be of a different standard to those 'native' solicitors who qualified in Scotland. One wonders whether the public in Scotland would be pleased to learn that the Law Society of Scotland is disposed to admit as solicitors candidates who have not demonstrated any knowledge of, for example, the criminal law of Scotland."

Clearly the Law Society of Scotland are finding it difficult to reply to the above letter, which their Admissions Committee received from an English solicitor some five months ago in October 2007, and this delay hardly demonstrates the Law Society's position as a competent Admissions Authority ....

In any case, the public in Scotland indeed, would not be very pleased to learn that the Law Society of Scotland is disposed to admit solicitor candidates who have no knowledge of key areas of Scottish Law .... and something must certainly be done about that. The Law Society maintains that it maintains standards within the legal profession but as we seen, admitting entry to those who have a limited understanding of the law itself, does nothing for maintaining standards ...

The solution to this problem would be to take away the Law Society of Scotland's admissions control of entry into the Scots legal services market, and pass it to a fully independent body which can oversee and administer the qualifications & entry process to a fair, consistent and high standard, ensuring both the public and professionals get the highest standards of access to justice & legal service in a fully opened legal services market.