Consumers are used to making decisions in all aspects of their lives based on their perception of the quality of particular goods or services. They are able to take comfort that consumer goods have been through rigorous checks and are signed off as being fit for purpose before they are sold. The consumer also believes that professionals such as accountants or financial advisers have achieved standards set by their professional bodies and undertaken regular assessments to ensure that they meet the standards expected of them, as do the firm in which they operate.
So how does that relate to the Bar? Advocacy is fundamental to the justice system. Members of the public rely upon it for the proper presentation of their case and the courts are dependent upon it for the proper administration of justice.
It has long been argued that regulatory intervention into the advocacy market is unnecessary as market forces should eliminate the under-performing advocate. However, whilst market forces can generally be relied upon to identify the competent advocate, it is not always the case that the less competent will not be instructed. In addition, it is now rare for an advocate to be observed by the selecting professional.
It has become apparent therefore that natural selection through market forces is not the answer to assure the quality of all advocates. The public interest and consumer protection requires a more proactive approach to assuring advocacy competence and the proper administration of justice depends upon it.
In order to deal with this the three primary regulators of legal advocacy, the Bar Standards Board (“BSB”), the Solicitors Regulation Authority (“SRA”) and ILEX Professional Standards (“IPS”) established the Joint Advocacy Group (“JAG”) to take forward the development of a quality assurance scheme. JAG agreed at the outset that their focus should be on criminal advocacy, which is where the principal concerns about standards of advocacy have arisen.
Following a number of months of deliberation and discussions with senior members of the judiciary and other interested parties, JAG has now issued a consultation paper on its proposals for a quality assurance scheme for criminal advocates.
I am a member of JAG and have been a criminal practitioner for over 20 years. This experience I hope means that I have been able to ensure that the proposed scheme reflects the way in which criminal advocacy is taught and practised.
Central to JAG’s consideration is the desire to develop a scheme which is cost effective, proportionate and straightforward. An unduly burdensome or bureaucratic scheme would not be in the interests of anyone.
This is the framework upon which JAG is consulting. JAG believes that the scheme proposed represents a proportionate and practical approach to quality assurance of criminal advocacy but at the same time it accepts that there is still considerable work to be done before any scheme becomes operational. In particular, JAG must do some careful financial planning in order to work up the costs for the initial set up and the operation of the scheme as well as the likely costs to individual advocates in respect of training, accreditation and re-accreditation.
A scheme which is expensive to operate and prohibitively costly for those being assessed will be in no one’s interests and could result in becoming a barrier to entry into advocacy. That said, any scheme must be sufficiently rigorous to be effective and carry confidence. Given the current economic climate and the falling rates of pay at the Criminal Bar, JAG is alive to the need for the scheme to be cost effective and not unduly burdensome.
Looking to the future
Changing the way that criminal advocates have advanced through their career has been no easy task. It has meant accepting as regulators that there is a need to create a quality assurance system which deals with the fact that the old checks and balances which existed when the Bar had a virtual monopoly on advocacy in the higher courts either does not exist for many advocates or is slowly dwindling for the rest.
The future lies in working together in business structures and loose conglomerates in a way that would have been thought unthinkable when I joined the Bar. The quality assurance scheme that the three regulators have worked on through JAG is designed to cope with the changes that have taken place and as far as possible be future-proof for the changes ahead.
I am only too aware that some of the changes are going to be difficult to accept and I am confident that there will be some frank and robust responses to the consultation paper. In particular the suggestion that fellow Silks be quality assured is, I am sure, going to be the subject of much debate.
Nevertheless, it is fundamental to effective regulation that rigorous quality assurance systems are in place to ensure that standards are attained and then maintained. The scheme set out in the consultation paper represents a straightforward solution which JAG believes is in the public interest and will carry the confidence of the profession and the judiciary. The consultation paper is your opportunity to tell us whether we are right.
Sam Stein QC is a criminal practitioner, chair of the BSB Quality Assurance Committee and a member of the Board and JAG.
The proposed scheme builds on the existing education framework for entry into advocacy to develop a rigorous assessment process to ensure that adequate standards are attained at the start of an advocate’s career. It is proposed that the advocacy training undertaken as part of the Bar Professional Training Course (level 1) and the New Practitioner Programme (level 2) will be the means by which barristers will be accredited to practise in the higher courts. Thereafter, it is proposed that advocates will be able to progress to levels 3 and 4 by obtaining an agreed number of judicial evaluations of their performance and competence as an advocate at that higher level. The judge will assess the advocate against agreed common standards which will apply to all criminal advocates. Periodic re-accreditation (every five years) will ensure that those standards are maintained and the advocate remains competent to practise as their career progresses. This is complemented by a reporting arrangement for judges and possibly others to refer poorly performing advocates for remediation or re-training. It is proposed that the scheme will be managed by an independent body, accountable to, and with oversight from, the three regulators of advocates.
Visit: http://www.barstandardsboard.org.uk/assets/documents/QAA_Consultation_Paper%20final%20version%2010-08-10.pdf for more information.