The Solicitors Regulation Authority (SRA) is planning to introduce a centralised advocacy assessment for solicitors wanting higher rights of audience.
The revised test would be a new requirement for advocates handling more serious cases in the youth courts and would no longer be available to trainee solicitors.
The proposals came as an online survey by the SRA, which obtained 2,830 responses from solicitors and 851 from firms, found that almost 25% of private practice solicitors holding the higher rights of audience (HRA) qualification had never used it in the higher courts.
Firms and solicitors said they were more likely to instruct a barrister than do the advocacy in a case themselves for economic reasons, efficiency and “to some extent” due to a lack of confidence in their skills.
Launching a consultation on its plans, the SRA said it considered restricting solicitors’ rights of audience in the lower courts until they had been assessed in witness handling, but decided against it.
“Evidence of concerns relates to criminal advocacy practised in higher courts and youth courts, not the magistrates’ court.”
The SRA said assessment for HRA was currently carried out by several different organisations accredited by the SRA, with assessment models varying across providers.
It proposed launching an “open procurement process” for a single HRA assessment organisation, to ensure candidates were assessed against “the same, consistent high standard”.
The SRA said it had revised its standards for assessments, including standards on witness handling and dealing with vulnerable clients.
The HRA test would no longer be available to trainee solicitors as an elective option on the professional skills course, and would only be taken by admitted solicitors.
This would help establish “external confidence in the qualification as a higher qualification” and give young solicitors more time to get experience of advocacy before applying for higher rights.
Under the plans, solicitors practising in the youth courts would need a criminal HRA qualification to act as advocate in any case which would have gone to the Crown Court if it had involved an adult.
The SRA said current advocacy rights did not reflect the expanded jurisdiction of the youth courts to include almost every crime apart from murder, manslaughter or certain firearms offences.
“This presents a risk to youth courts clients and could put them at a disadvantage compared to adult clients, even though they are likely to be more vulnerable.”
Around half of solicitors practising in the youth courts already have the HRA qualification.
The regulator said “persistent concerns” had been raised over the years about the quality of solicitor-advocates, mainly those working in the criminal courts.
Concerns about poor quality criminal advocacy had been raised by the government-commissioned Jeffrey review in 2013, while courts ruling on the judicial review of the Quality Assurance Scheme for Advocates concluded that there was “enough evidence of poor practice in criminal advocacy” to justify the introduction of the scheme.
The SRA did not mention a warning from the Legal Services Board in January this year that it would continue to be marked down in its reports on the performance of the legal regulators until it developed a new approach to ensuring the competence of solicitor-advocates.
However, the SRA said that, despite its efforts to research the issue, there was “little evidence about whether poor advocacy is a widespread problem” and “relatively few reports of poor advocacy” were received from judges.
It said that out of 89 complaints from judges received between January 2015 and February 2018, only 3% related specifically to the solicitor’s competence.
The online survey revealed that 30% of private practice solicitors believed the overall quality of advocacy had improved in the past 10 years, 29% thought it had stayed the same, while 19% believed quality had declined. The rest said they did not know.
On specific skills, criminal sentencing “seemed to be the weakest area”, in line with the finding that almost half of private practice solicitors had never received training in this area.
The survey found that 85% of respondents believed there was a problem in criminal solicitor-advocates leaving or retiring and “not being replaced by younger advocates”.
A substantial minority (34%) disagreed or strongly disagreed that an online court system for civil money claims up to £25,000 would benefit claimants.
Paul Philip, chief executive of the SRA, said: “Nowhere is it more important that a client can rely upon their solicitor to provide a good service than when in court, where a person’s freedom or livelihood can be at stake.
“While the majority of solicitors do a good job, we do hear comments that this is not always the case.”