Hanmer: QCA better placed than BSB
The Bar Standards Board (BSB) has issued a formal request to Queen’s Counsel Appointments (QCA) – the body which runs the annual silk round – to consider developing a system of re-accrediting criminal QCs as “it is not in the public interest to exempt QCs from quality assurance”.
The move follows a previous announcement after the regulator’s January board meeting in which the BSB said it would explore other ways to protect the public from poor standards of advocacy given the continuing uncertainty over the Quality Assurance Scheme for Advocates (QASA).
The legal challenge to QASA is now before the Supreme Court.
QCA is a joint venture between the Bar Council and Law Society that supports the independent QC selection panel.
The BSB said it had first raised the potential for QCA to play a role in the continuous quality assurance of QCs two years ago in its response to final QASA consultation.
Oliver Hanmer, the BSB’s director of supervision, said: “It is our job to set up systems that safeguard clients from those advocates who are simply not as good as they should be, no matter their level of experience. We are resolutely committed to achieving this aim.
“QASA is devised to assess minimum standards of competence that advocates should be able to demonstrate so as to practise safely and competently in criminal trials, which, by their nature, can have serious consequences for often very vulnerable people.
“Criminal barristers are appointed QC because they consistently operate at the highest standards of advocacy. And, while we firmly believe it is not in the public interest to exempt QCs from quality assurance, we think QCA – should they accept our request – may be better placed than we are to deliver this process.”
The BSB said that should QCA accept the request, the design of the QC re-accreditation scheme would be at its discretion. The BSB would then consider what impact the QCA re-accreditation scheme had on QASA.
A spokesman added that the request was limited to criminal specialists, rather than all silks, because it was framed in the context of QASA.
Last week, the Legal Services Consumer Panel said QC status should be available to all advocates appearing in the higher courts, whether or not they are barristers or solicitors.
This is a puzzling request, as ever, from the BSB. The Consumer Panel from their letter thinks that there is a “consultation” to which they were replying. Is there one? If there is, it is not on the websites of either the QCA; BSB or LSB.
There is no reason to frame such a request in line with QASA. QASA includes silks. So, if this is correct (and it almost certainly is not), it is unnecessary regulatory duplication. It is also not evidence-based. All of the QASA evidence, such as it was, pointed to high quality advocacy at QC level and suggested that QASA should be framed originally on similar line to the QCA in order to mirror that excellence. So, what is the regulatory need? The BSB made submissions to the Supreme Court last week as to the importance of the identification of a need and its evidence. But, in this case, it is unclear if there is any.
It might be thought that excellence in advocacy is more likely to be reflected at the criminal bar than, say, at the commercial or chancery bar, simply because criminal advocates appear more regularly in courts. So, why not extend to all Silks; especially if there are fewer HCA silks (in fact as a percentage of applicants there are not), and especially as the recent batch were mainly from the commercial fields.
The BSB need to reflect on their request before they get tied up, once again, in litigation against their own members.