Tensions between regulators erupt over advocacy assurance scheme and judicial evaluation

The chair of the Bar Standards Board has publicly called on the “minority advocacy regulators” to press ahead with the Quality Assurance Scheme for Advocates.

Baroness Deech’s plea came as the board expressed concern at “last-minute” proposals by the Solicitors Regulation Authority that the BSB claimed would allow the judicial evaluation element of QASA, which will initiallly cover criminal advocates, to be bypassed in certain parts of the scheme.

The SRA is understood to have suggested that plea-only advocates should be allowed to undergo assessment by assessment centre only in order to do non trial work at the level above which they are judicially assessed to perform.

The BSB argues instead that all advocates should be subject to judicial evaluation in the public interest, believing that having different rules for different advocates could lead to confusion.

In a sign that implementation of QASA is set to be delayed again, the BSB said it wanted to see the scheme introduced “this year”. The original timetable would have seen it launched in December 2011, but then it was postponed to April 2012 after concerns were raised during consultation.

The board has been working – as part of the Joint Advocacy Group – with the SRA, ILEX Professional Standards and the Legal Services Board to develop QASA.

The BSB said it believed that judicial evaluation was “an essential guarantee for the consumer and one which places the public interest at the heart of the scheme”.

However, in a high-profile speech recently Lord Justice Moses, a Court of Appeal judge, criticised the judicial evaluation element of QASA.

“Can anyone who has spent any time in court listening to advocacy really believe that a system of marking will encourage, influence or inspire, or will it deaden and crush in the pursuit of a bland and colourless uniformity?” he asked.

The Law Society has also expressed concern at the role of judges in assessing advocates, with chief executive Desmond Hudson arguing in the Law Society Gazette that it could cause them difficulties in advancing the interests of clients.

But Baroness Deech today said: "We are keen to see a simple, unbureaucratic and workable quality scheme brought in as soon as possible. That is what we are urging the minority advocacy regulators to join us in; a scheme that will quickly benefit the public and courts and provide consumers with the reassurance that their advocate has faced robust judicial evaluation."

The BSB chair insisted that more could be done to provide the assurance of quality that the public was entitled to expect, and to help in the minority of cases where standards fell short.

"The Bar is often seen as a traditional profession, but it is in fact embracing quality assurance in the public interest,” she said. “It is time for the minority advocacy regulators to join us in doing so."

In response Antony Townsend, Chief Executive of the SRA, said: "The SRA, as the regulator of over 11,000 advocates, is ready to begin the rapid implementation of the Quality Assurance Scheme for Criminal Advocates on the basis of the proposals agreed with the Legal Services Board and all the other key stakeholders. We have urged the Bar Standards Board to agree.

"The use of judicial evaluation is a central feature of the scheme. Our focus is – as it always has been – on the introduction of a scheme which has at its heart a common set of advocacy standards against the full range of which the competence of all advocates can be measured and judged.”

Townsend said the SRA’s position was that it was in the public interest that all advocates who can demonstrate their competence against all of the standards are able to gain their QASA accreditation.

“All those who undertake trials will be required to obtain judicial evaluations of their performance,” he added.

"The scheme should not be used as a device to exclude the demonstrably competent simply because their pattern of practice does not include trial work. We are committed to a review of the scheme, with our partners, when we have sufficient evidence to see whether adjustments are required."

The QASA scheme has been designed with four levels, which are mapped to complexity of work. Level one applies to advocacy in the magistrates' courts, for example, while level four applies to the most complex cases in the Crown Court. A single set of advocacy standards will apply across the four levels.

However it has proved controversial with local government solicitor-advocates, who last year argued that there would not be a level playing field between barristers and solicitor advocates handling regulatory work.