The Law Society has launched a strong attack on the proposed scheme for assessing the standards of advocates working in criminal cases, warning that it could be “disproportionately costly and of uncertain efficacy”.
The Quality Assurance Scheme for Advocates (QASA) received the conditional endorsement of the Solicitors Regulation Authority last week.
The scheme was developed by the Joint Advocacy Group (JAG), which was set up in late 2009 by the SRA, the Bar Standards Board, and IPS (ILEX Professional Standards). Under the proposals, most advocates will be assessed through live performance by judges.
The SRA said its approval was conditional on receiving a number of assurances. These relate to preparations for judicial training, the costs of the scheme, and the need to ensure that advocates acting in cases before judges involved in their evaluation were not faced with any apparent conflict interests.
The Bar Standards Board will consider the scheme on 16 June, while IPS will examine it at a meeting in July.
If approved by all three bodies involved in the JAG, the proposals will be submitted to the Legal Services Board for initial approval in July and full submission in September. The aim is to have the scheme introduced in phases from January 2012.
According to the SRA, the number of advocates affected by the scheme within each of the three regulators ranges “from a small number of IPS advocates at level 1 to thousands of higher rights solicitors and barristers seeking to practise at levels 3 and 4”.
The SRA said that the proposals relate only to the application of the scheme to criminal advocacy “although it provides a model which could be used in other areas of advocacy if required”.
SRA chief executive Antony Townsend said: "Currently those who undertake advocacy in the criminal courts may have qualified through different routes with varying methods of education, training and assessment.
"While this system may have worked in the past, lawyers, clients, the public and the judiciary, need to be satisfied that advocates appearing in the criminal courts are operating to consistent standards. The changing face of the legal landscape, coupled with competition and commercial issues are all creating pressures which mean that we need to take a more proactive approach – both in the public interest and for consumer protection – to ensure that advocates are competent and able to perform well.”
The JAG was planning to pilot aspects of the scheme at two court centres – Canterbury and Durham – in May and June.
If approved the first stage of the scheme for initial accreditation of advocates at levels 3 and 4 will become operational in January 2012. Live assessment of advocates at levels 3 and 4, either by judicial evaluation or by an assessment organisation, will begin in March 2012.
The Law Society said it had concerns about the proposed methods of assessment. It also questioned the justification of the scheme, saying it was “unaware that any evidence had been published to support the assertion that advocates were falling below the appropriate standards”.
Chancery Lane warned that the QASA approach would shift the assessment burden to hundreds of “already overworked” judges and that it would be impossible to moderate the scheme in a transparent or coherent manner. Nor had any attempt been made to assess the affect of the scheme on the advocacy market, it argued.
The Law Society added that its own schemes supporting solicitor advocates should be considered by the SRA and the Legal Services Board as an alternative, more proportionate approach.
Law Society President Linda Lee suggested that judges were not always going to be aware of the nature of the advocate's instructions and their role was primarily to judge a case, not assess performance.
"We fear that this will cause advocates considerable difficulties in their relationship with the judges if they are assessing their performance,” she said.
Lee also expressed concern about QASA’s costs, and questioned whether it was appropriate to introduce an additional burden on criminal advocates operating on legal aid rates.
"We believe that, before this, or any scheme is implemented, evidence should be gathered as to whether it is a proportionate solution to any problem and there should be a proper pilot to identify whether the standards have been placed at the right level and whether judicial evaluation will work fairly and effectively– in other words we simply ask the SRA and the other regulators involved to comply with the better regulation principles – an approach they have previously espoused,” the Law Society President added.