Kenny: keen to seek informal resolution
The Legal Services Board (LSB) is explicitly threatening the Solicitors Regulation Authority, Bar Standards Board and ILEX Professional Standards with using its formal enforcement powers for the first time over their quality assurance for advocates (QAA) scheme, Legal Futures can reveal.
The regulators have branded the move as neither “helpful nor necessary”.
The LSB says it is “unlikely” it could approve the scheme as currently put forward by the regulators, which together make up the Joint Advocacy Group (JAG) under the LSB’s oversight, and that it has “only limited confidence that there are strong enough plans in place to deliver a proportionate scheme that supports the regulatory objectives by July 2011”, the deadline it agreed with JAG.
The LSB board was told recently that delivering a QAA scheme “could be seen by some commentators as a test of our credibility and that of the approved regulators making up the JAG”. Legal Futures understands that the Bar Standards Board has very much been leading the way in developing the scheme.
The three enforcement options being considered are issuing a direction that the regulators take certain steps, setting performance targets, and publishing a public censure. The LSB has taken legal advice but its board was warned that it needs to consider the implications of enforcement “in terms of damage to our relationship with [the approved regulators], the resources required to support the enforcement action and deal with any challenges and the potential for reputation damage if we were successfully challenged”.
In a letter to JAG members last month aimed at increasing the pressure on them, LSB chief executive Chris Kenny said he wants to make “further efforts to resolve the outstanding issues informally” before considering formal action, but the timetable is tight – the board was told that to issue a direction in July, the process would need to begin in February.
The QAA is currently just for criminal law advocates, but is a forerunner for similar schemes in other fields, with family likely to be next. The LSB has three key areas of concern with the scheme as currently proposed:
- The need for a robust assessment approach for advocates at the lower levels 1 and 2 for both newly qualified and experienced advocates;
- The need to supplement judicial evaluation in live cases at levels 3 and 4 (for higher-level cases) with other forms of evidence, such as a structured assessment via a role-play exercise; and
- The need to rethink the implementation approach so that resources are committed to project management and that the establishment of the Performance of Advocacy Council – which the three regulators propose to create to run the QAA – “does not prove a distraction from implementing an operational scheme”.
Correspondence in November between the LSB and JAG provided “little reassurance that our concerns have been taken on board”, the board was told.
The worries about over-reliance on judicial evaluation are shared by the Law Society and Solicitors Association of Higher Court Advocates, while the Crown Prosecution Service and Legal Services Commission have “fundamental concerns that the proposed approach is not robust or credible and is insufficient to meet the objectives”, according to the LSB. The Legal Services Consumer Panel has also highlighted what it sees as significant shortcomings in the scheme.
As well as the letter, to assist the JAG the LSB has commissioned independent research into best practice in assessment methods and the design of a model scheme.
Oliver Hanmer, head of quality at the Bar Standards Board, said: “The Joint Advocacy Group remains committed, and on course, to deliver a quality assurance for advocates scheme by July 2011. Considerable resources are being applied to ensure that this timetable is met. Suggesting enforcement action at this stage is neither helpful nor necessary.”
An SRA spokeswoman added: “The SRA, BSB and ILEX Professional Standards are pursuing the quality assurance for advocates programme in accordance with the published timetable. We discuss progress with the Legal Services Board and other stakeholders regularly. Enforcement action is neither necessary nor appropriate.”
The JAG consultation document on QAA was a frankly incredible document. In my previous blog on the topic (http://lawyerwatch.wordpress.com/2010/10/07/why-the-regulation-of-advocacy-is-important/), I said this:
“The document is flawed in a number of respects. It contains no assessment of the risk that they are regulating. It leaves massive amounts of detail undecided and yet elements of the scheme they sketch out do not seem to join up. Furthermore, it places almost total reliance on judicial evaluation as the mechanism by which quality of advocacy will be assured. The latter in spite of significant reservations about the practicality and fairness of such a scheme.”
Unless there has been signfiicant progress behind the scenes, enforcement action has to be contemplated.