Divisions over advocacy scheme harden as regulators face battle to keep it alive

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By Legal Futures

20 February 2012

Quality assurance: will scheme be scrapped?

Divisions over quality assurance for advocates have deepened after solicitors were advised not to take part in a Bar Standards Board survey on the issue.

Legal Futures understands that the future of the Quality Assurance Scheme for Advocates (QASA) is now genuinely in doubt, with specialist Bar associations also being urged to oppose it.

Though work on QASA first began in 2009, and it is scheduled to begin shortly, it has only been in recent months – with the details of the scheme agreed by the three regulators behind it, the Solicitors Regulation Authority (SRA), Bar Standards Board (BSB) and ILEX Professional Standards – that opposition has hardened. QASA is also supported by the Legal Services Board.

Last week Lord Justice Moses fuelled the fire with a speech attacking the role of judges in assessing the performance of advocates before them, one of the key components of the scheme.

The BSB has commissioned ORC International to conduct a survey seeking the views of the profession as to the frequency with which they encounter underperformance in the criminal courts. The results will be used to provide a baseline ahead of the implementation of QASA.

The Criminal Law Solicitors Association has advised its members not to take part in the survey. In a statement, it said: “ORC propose to approach solicitors t

o complete either an online survey or a telephone survey. The SRA has not been consulted or had any input into this survey.

“Sadly QASA and the design of any scheme has been an area of conflict between the Bar and solicitors, with the Bar favouring an exclusive reliance on judicial evaluation. The CLSA cannot therefore recommend co-operation with this survey as we did with the SRA survey.”

The Law Society almost went as far. It told solicitors: “The SRA has not endorsed the research and we believe this project should be supported by all the regulators. If you are contacted, you may wish to bear this in mind when deciding whether to respond.”

Both the Law Society and CLSA also backed Lord Justice Moses’ critique. Law Society chief executive Des Hudson said: “We have long been concerned that the involvement of judges in assessing the advocates in front of them will cause considerable difficulties for advocates in advancing the interests of their clients. It is also inevitable that the ratings will be used in appeals.

“The Law Society supports a proportionate system of quality assurance for advocacy but we doubt that this is the way of achieving it. We would urge the regulators to listen to the concerns of a senior and experienced member of the judiciary on this point.”

Meanwhile, Marc Beaumont, chairman of the Public Access Bar Association, has written to his counterparts at other specialist Bar associations, telling them that the Bar should ignore Sir Alan Moses’s speech “at our peril”.

He said: “It is impossible to understand how QASA can be lawful. If you wish to be free to continue doing your job for your clients without fearing a black mark from the judge, please support us in our view that QASA should be scrapped… QASA for crime today is QASA for all forms of Bar work tomorrow. This affects all of us.”

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3 Responses to “Divisions over advocacy scheme harden as regulators face battle to keep it alive”

  1. If as you say:

    “The BSB has commissioned ORC International to conduct a survey seeking the views of the profession as to the frequency with which they encounter underperformance in the criminal courts. The results will be used to provide a baseline ahead of the implementation of QASA ”

    why did they not do this BEFORE deciding whether the numbers of incompetent Barristers are so high as to warrant a huge and expensive new bureaucracy. Research is supposed to precede reform: here reform preceded the research. This is a victory for ideology over truth: history is replete with such victories and they tend to result in misery, oppression and conflict. I expect as Sir Alan Moses says, that the few Barristers who might be lacking in Court would be better being sent off at their own expense to Keble College for advocacy re-training. A scheme that involves ALL Judges marking ALL Barristers is thus not only unconstitutional but it is unnecessary and disproportionate. The alleged failings of a tiny minority of Barristers appear to be being used as a stick with which to beat an entire profession into cringing passivity in the discharge of its Court work. I wonder who judges the performance of those who dreamed up this laughable waste of time and money. What sort of grade is best suited to those of a quixotic disposition who place ideology over truth ? And indeed, who are they ? And why exactly are they permitted to govern us ? What is their political agenda ? Does anyone know ?

  2. Marc Beaumont, Barrister on February 20th, 2012 at 11:11 am
  3. It will be very interesting to see how this survey is defended. Ask a group of people who may be about to be regulated whethr they think they need to be further regulated and you usually get a straightforward answer.

  4. Richard Moorhead on February 20th, 2012 at 1:58 pm
  5. Lord Justice Moses has made some good points, suggesting that quality assurnace should be by qualification and on-going training. In practice, the scheme he suggests is the one which has been recommended by the Joint Advocacy Group (JAG) for most criminal advocates. Almost all criminal cases are dealt with in the Magistrates Courts where Level One advocates practice. Level 1 advocates will gain their accreditation, as they do now, by qualifying as solicitors, barristers Chartered Legal Executive Advocates and Associate Prosecutors. They will maintain their accreditation by annual, assessed, CPD courses. During the period of their accreditation, recommended at the moment to be 5 years, they will need to be assessed against the full range of advocacy standards identified under QASA. This will not be done by way of judicial assessment. CILEX shares the view of JAG that assessment is important to ensure that practitioners, regulators and clients can be sure that individual advocates are, and and continue to be, competent in their work before the courts.
    As for Lord Justice Moses’ belief that there should be only one regulator for advocacy, we should perhaps be careful what we wish for. In practice there is no difference between the various regulators of advocacy regarding the standards of advocacy they require and the ethics underpinning them. The needs of clients and the courts and the interests of justice all require that common approach which, in our view, does not depend on the existence of a single regulator.

  6. Diane Burleigh on February 22nd, 2012 at 12:17 pm

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