BSB will be “held to account” over poor criminal advocacy

Buckley: Regulatory intervention remains necessary

The Bar Standards Board (BSB) was told yesterday that it will be held to account over how it deals with poor-quality criminal advocacy.

It follows the BSB’s decision last year to ditch the Quality Assurance Scheme for Advocates (QASA) – some six years after it was first meant to come into force.

The BSB applied to remove the QASA rules from its Handbook, which the Legal Services Board (LSB) yesterday approved.

In the decision notice, LSB chief executive Neil Buckley noted findings from recent research into judicial perceptions of criminal advocacy, which indicated that standards were generally adequate but there were pockets of poor quality practice.

He wrote: “We see from the application that the BSB has also acknowledged that regulatory intervention remains therefore necessary.

“However, the BSB has changed its approach so that intervention fits more with the regulatory methodology and regulatory good practice generally which it now adopts.”

He said: “The LSB will hold the BSB to account through its regulatory performance framework to ensure that it does implement measures that provide a robust and proportionate response to the quality risks in advocacy that it has identified.”

Last month, the BSB published more detail on how it intended to assure the competence of practitioners, reflecting its move in recent years “to become a more risk- and evidence-based regulator that takes better targeted action to maintain standards of practice at the Bar”.

This meant that, where necessary, focused regulation could be introduced – as it has been for Youth Court advocacy – but a range of more general measures were also in place.

These included the Professional Statement for Barristers – which lists a clearly defined set of knowledge, skills and attributes expected of all newly qualified barristers on their first day of practice – the new CPD scheme introduced last year, and existing regulatory controls stemming from the rule that barristers should not undertake work unless competent to do so.

The BSB said it was also using external indicators, such as the processes for reviewing the quality of barristers to join specialist panels like the Treasury Panel or for appointment as a QC, complaints to the Legal Ombudsman, and annual information published by the Crown Prosecution Service on the performance of its prosecutors.

“We will be developing information-sharing arrangements across the legal sector and strengthening our contacts with consumer organisations and training providers,” it added.

“Critical to its success will be the willingness of those within the justice system to share concerns with us so that we can take proportionate action to address any patterns of poor practice.

“Further, the success of the approach relies upon the profession engaging positively with the regulatory framework that is now in place by ensuring, as a minimum, that they comply with regulatory requirements. This reduces the need for additional regulatory intervention.”

BSB director of regulatory assurance Oliver Hanmer said at the time: “In the years since QASA was developed and approved, the BSB has fundamentally transformed the way in which it regulates the Bar.

“Standards of practice at the Bar are generally very high and the controls that we have put in place, such as our much more robust CPD scheme for established barristers, and the supervisory regime in place throughout the profession, mean that we are confident that a formal quality assurance scheme should not be necessary.

“[It] reflects our belief that the profession should take responsibility for maintaining standards of practice supported by a proportionate regulatory framework. If they do, it means that we can focus our attention where it is most needed.”

    Readers Comments

  • Tony McDaid says:

    QASA was always doomed to fail given its scope was far too wide and the fact that we are always told there is simply no money to invest in the legal profession particularly in areas that are covered by legal aid yet he we were introducing a scheme that was always going to be cost prohibitive.
    The scheme sought to monitor advocates of all descriptions and placed a heavy burden on the judiciary.
    A better way of dealing with what is generally accepted as a minority of advocates providing poor advocacy would be simply to have Judges report on those advocates rather than expect, as was the intention through QASA, reporting and grading of all advocates including Silks who if I am not mistaken had already been through rigorous assessment before being awarded the letters QC.
    It was the intention to roll QASA out for other areas of Advocacy with a grading system that would have removed the right of choice for solicitors and lay clients to instruct the legal team of their choice even where they were paying privately.
    A waste of everybodys time and money that would have been better utilised funding a legal aid system that is in a desperate state and not supporting the society it was set up to support.
    Furthermore the knock on effect is that the brightest entrants to the Bar and solicitors profession through financial necessity will have to consider other areas of law simply to survive unless they have a trust fund reversing three decades of attempts to improve diversity and equal opportunity.
    The end result will be in five to ten years time there will be another call for QASA but the standard of advocacy in those areas of law will be poor and only those with the money to do so will be able to access the advocacy they need to give them any chance of having a fair hearing.

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