The Legal Services Consumer Panel (LSCP) and Criminal Law Solicitors Association (CLSA) have both strongly criticised proposals from the Solicitors Regulation Authority (SRA) to improve advocacy standards – but from diametrically opposed standpoints.
Sarah Chambers, chair of the LSCP, said the panel started from the premise that “there is a problem with advocacy which needs to be addressed”.
Responding to plans set out by the SRA this summer, Ms Chambers said: “While we accept that there may not be significant numbers of advocates who are inadequate, we consider the potential detriment of even a minority of poor advocates to be so significant and life changing as to require robust regulatory intervention.
“Therefore, we consider it completely appropriate for the SRA to stipulate that any advocate who wishes to work in the magistrates’ court and upwards should be assessed in witness handling.”
The SRA admitted in its consultation paper that it had considered the move but rejected it because all the evidence pointed to it being a problem in the higher courts.
Ms Chambers said the LSCP did not agree that solicitors should be able to self-assess their competence in this area – those who choose to practise criminal law once qualified should be assessed as qualifying in witness handling.
She added that, although the SRA referred to five research reports raising concerns about the quality of advocacy, the regulator stated that most of its evidence was anecdotal and it had “struggled” to obtain more. It was not clear, she said, whether the SRA believed there was a problem to address.
Consumers lacked clear standards to know what quality advocacy was and what they should expect from an advocate; this absence also meant providers did not know what they should be delivering.
“They do not understand clearly enough that they can be called to account for falling short of standards, for example by taking on cases they lack the legal knowledge to do effectively.”
Ms Chambers said judges, meanwhile, had “no clear guidance on what to do when they see poor advocacy that needs to be addressed and are probably not clear what their responsibility is to ensure standards are being met”.
On balance, she said the SRA had not addressed the current failings “robustly enough”.
The LSCP added that it strongly agreed that solicitors practising in the youth courts should hold a higher rights of audience (HRA) qualification, but in all cases, not just in those which would go to the Crown Court if they involved an adult.
On the other side of the argument, the Criminal Law Solicitors Association strongly criticised the SRA’s lack of evidence, saying: “This has the feel of a witch hunt and a sop to the Bar Council instead of promoting the positive aspects of higher court solicitor-advocates, a sad state for our regulatory body to become embroiled in.”
The CLSA response observed that the SRA said there would be a disproportionate impact on BAME solicitor-advocates, given that they are ‘over-represented’ in the criminal solicitors’ profession.
“This seems to be in direct opposition to the SRA objective of ‘encouraging an independent, strong, diverse and effective legal profession’.”
It added: “Whilst it is a correct observation that poor advocacy is detrimental to the client, it is not for the SRA to take on the role of justice administrator and state ‘Wrongs may go unpunished’. That is both a social and moral observation and has nothing to do with advocacy.”
The CLSA dismissed the youth court advocacy plans as “entirely misconceived and irrational”, making a number of “incorrect and dangerous assumptions”.
It pointed out that solicitors routinely dealt with vulnerable clients, but the SRA proposal would “exclude many solicitors who have significant experience and skill in this area, but who are not higher court advocates”.
In its response, the Law Society said the impact assessment accompanying the paper was striking “in the total absence of any robust analysis” of the impact of the changes on solicitor-advocates.
“We recognise that advocacy can be a high-risk area; however, we are concerned that some of the proposals could have a potentially negative impact on the supplier base, which is currently extremely fragile.”
On youth courts, the society said the proposal to require the HRA qualification even in limited circumstances may “risk excluding many solicitors who have significant experience and skill in this area”.
It went on: “Whilst many HCAs [higher court advocates] may very well have the skills and experience to deal with serious youth court cases, the proposal does not actually require any experience whatsoever in this area.
“It could thus allow HCAs who have no – or limited – experience of youth court work to undertake very serious cases, with all of the risks to these vulnerable clients that this would bring.”