Advocacy and its future

The background to QASA and its possible evolution; and a look at the debate surrounding fusion of the profession

Contributor
Michael Todd QC, Bar Chairman

“This was my first experience of the Family Court system and I was deeply impressed with the level of care and attention with which [X] ‘was just doing her job’. At a very vulnerable time I felt protected, reassured and offered the confidence and clarity with which to make my choices. While I had only met her once before and knew I was benefitting from her years of experience of more complex case work, she made me feel my case was just as important.” Not my personal experience, but the experience of an intelligent and articulate litigant before our Courts, set out by that grateful litigant in her letter to me of 26 January. It is a testament to a very able barrister; a barrister who is, herself, a testament to the excellence and quality of the Bar. As Chairman of the Bar, I was proud to receive that letter.

So why do advocates need to be quality assured? The germ of the idea for a scheme for the quality assurance of advocates (QASA) is to be found in the Carter Review Report in July 2006. The Executive Summary of that Report stated that “there should be a minimum standard of quality for all legal aid practitioners assured through peer review.” The Department of Constitutional Affairs (as then was) presented a Report to Parliament in November 2006 as a result of the Carter Review which stated that “Quality is at the heart of our legal aid reforms. We need to ensure that changes to the procurement system do not compromise good quality service for clients and defendants. Quality is essential to the market-based approach in our legal aid reforms, as price can never be the sole consideration for awarding contracts. All providers wishing to undertake legal aid work should pass a strict quality threshold. Such an assurance of professional quality should both protect and help individuals to have confidence in the service that they receive, and also contribute to an overall sense of trust in the justice system.”

There can be no doubt that the criminal justice system is dependent upon good quality advocacy to deliver fair results. The criminal Bar, rightly, prides itself on its advocacy skills, the quality of which is far above and beyond the lowest common denominators of competence at which some fear any quality assurance scheme may wish to assess advocates. I know of no consumer of legal services, be that the Government, the public or the Judiciary, who sees any benefit, or public interest, in the creation of more than one scheme for quality assurance, and particularly of assessment, or in ‘salami slicing’ the advocacy function between trials and pleas. Advocates must be assessed, if they are to be assured advocates, on the full range of advocacy skills and competencies.

The BSB website states: “(T)he public interest and consumer protection require a proactive approach to assuring advocacy competence in the criminal courts. Under the Legal Services Act 2007, the regulators are responsible for setting and maintaining standards within their respective professions. This includes a requirement upon them to have in place effective quality assurance arrangements.” There is little doubt in my mind that, over time, there will be calls to quality assure advocates practising in areas other than crime.

But what does this mean in quality assurance terms for those not practising in crime? The BSB’s position, as I understand it, is that it sees its quality assurance responsibilities and activities as forming part of good regulatory practice. It is not suggested, so far as I am aware, that there is any evidence-based need for a similar scheme for advocacy in other practice areas. Thus whilst quality assurance is likely to be rolled out across the Bar as part of the BSB’s good regulatory practice, that does not mean that ‘QASA Crime’ gets rolled out beyond those practising in crime. We must, however, start to think about how we are able to evidence the absence of any need for any such scheme and/or be proactive and cooperative in devising a scheme to demonstrate how quality can be assured. In this SBAs have a really important role to play and should start by asking and answering the questions “what does quality in the provision of legal services in our area of law look like? Would users of our services articulate it in the same way?”

In an article entitled “Law Society President: split in profession to end”, on 25 January, the Law Society Gazette reported on John Wotton’s speech to the Said Business School in Oxford, “Fission or Fusion; Independence or Constraint.” The Gazette reported that the President thought it inevitable that the professions will “need to revisit the question whether [they] should continue to be separately trained, represented and regulated,” adding that he envisaged a time “when the distinction will be more a decorative than a functional aspect of our legal constitution.”

What the Gazette omitted to report, however, was the following from the President’s speech: “I assume, however, that the two separate professional titles of barrister and solicitor will survive for the foreseeable future, if only because there is no strong current of opinion in favour of fusion on the part of the members of the professions or their clients.”

I suggest the reason is that solicitors recognise and value the quality and excellence with which the Bar delivers its specialist advocacy and advisory services. When the fact is recognised that not all solicitors wish to provide advocacy services and that not all barristers wish to perform litigation services, perhaps this sterile debate can be laid to rest. I leave you with this thought; is this now the time for all would-be advocates to elect to come to the Bar?