Hudson: rationale for solicitor requirement is questionable
A final consultation on the Quality Assurance Scheme for Advocates (QASA) has been amended at the last minute to take into account objections raised by the board of the Bar Standards Board (BSB).
Meanwhile, Law Society chief executive Des Hudson has criticised the BSB for “inconsistency” in not following the Solicitors Regulation Authority’s (SRA) lead in requiring notification by practitioners of their intention to practice advocacy in the criminal courts.
The fourth consultation, published yesterday by the Joint Advocacy Group (JAG) – which oversees the criminal advocacy scheme on behalf of the BSB, the SRA and ILEX Professional Standards – closes on 9 October, ahead of the scheme’s January 2013 start date. A number of areas of dispute between the SRA and the BSB remain unresolved.
At the BSB’s monthly board meeting last month serious concerns were voiced over the proposal to downgrade the minimum requirement for advocacy in the youth courts to level 1, the same as magistrates’ court work. In the previous consultation it was judged that advocacy in the youth courts should begin at level 2 – the starting point for Crown Court work.
BSB board lay member Malcolm Cohen refused to endorse a suggestion in the draft consultation that complex youth court work was currently undertaken only by higher-level advocates. A majority of board members urged that research should rapidly be carried out into the appropriate advocacy standards for the youth court.
The revised consultation is more equivocal about the wisdom of the scheme’s proposed shift from level 2 to level 1. A statement that the JAG “believes that [level 1] more accurately reflects the skills required for the majority of advocacy in the youth court” was excised.
The sentence that so offended Dr Cohen was also removed and a new section added, which reads: “Youth court cases involve vulnerable defendants and witnesses. Specialist skills are necessary to manage these cases and the impact of incompetent advocacy is potentially serious.
“It is proposed that the regulators should conduct focused research into the youth court in order to establish whether there are risks present and if so what, if any, additional measures (such as specialist training, for example) might be necessary to address these. JAG recognises the need for this research to be undertaken as a matter of priority so that recommendations may be made during 2013.”
Mr Hudson welcomed aspects of the consultation but complained there was insufficient detail about level 1 arrangements. He was also concerned that the BSB had not “joined the SRA in requiring advocates to register for the scheme”. He continued: “If the scheme is to have credibility it must be applied equivalently across all regulators and both professions. If the BSB is already being inconsistent at this stage it bodes ill for the future.”
However, he also attacked an SRA proposal to require all solicitors to qualify for level 1 of QASA if they wish to conduct advocacy in the magistrates’ courts beyond a five-year post-qualification grace period.
“The effect of the proposals will be that the bulk of the solicitors’ profession will lose the right to appear in criminal matters in the magistrates’ courts. This rationale is questionable.”
Solicitors’ duty to act only where they are competent should be sufficient, he argued, adding “We are also concerned that the proposals are unlikely to reflect the realities of practice for many solicitors who appear in the magistrates courts.”
Yvonne Spencer, chair of the Solicitors Association of Higher Court Advocates (SAHCA), claimed the consultation showed the scheme had been altered to reflect a number of its concerns, but said SAHCA “remains disappointed that judicial evaluation will be the only option for trial advocacy assessment as we firmly believe the lack of an alternative accreditation method will exacerbate the inevitable limitations that judicial evaluation will place on the entire process. We expect to see robust scrutiny of the necessity for exclusive judicial evaluation when the scheme is reviewed in 2015”.
Other details revealed in the consultation document for the first time include QASA’s phased implementation timetable. Phase one involves the Midlands and Western Circuits, with advocates in the region having to register between 14 January and 12 April 2013 in order to obtain full accreditation within a year. The South Eastern Circuit is in the second phase, with a registration window of 17 June to 13 September. Finally, members of the Northern, North Eastern and Wales and Chester Circuits must register between 16 September and 13 December.
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