Monday 26 March 2012 by Catherine Baksi
An agreement reached last week over accreditation for advocates has failed to settle a key point of difference between barristers and solicitors. In a joint briefing published on Friday, the Solicitors Regulation Authority (SRA), Bar Standards Board (BSB) and Ilex Professional Standards announced that they had reached an agreement on the model of the quality assurance for advocates (QASA) scheme, under which all advocates who undertake Crown court trials will have their performance assessed live in court by a judge.
The QASA scheme, due to begin this year, will provide a single route through which solicitors, barristers and legal executives carrying out publicly funded criminal advocacy will be assessed through a common set of standards at four levels of competency.
When announced, the agreement, which SRA chief executive Antony Townsend said had been brokered by the Legal Services Board (LSB), appeared to end a long-running dispute between the SRA and BSB. Under an amendment to the scheme sought by the SRA, plea-only advocates (who the SRA want to term 'trial ready advocates') - who do not undertake trials - will be able to do non-trial Crown court hearings without being assessed by a judge. Instead they will be tested in assessment centres. A tender process has begun to pick a service provider.
However, there remains disagreement between the regulators over how the scheme will be applied, particularly in relation to how long plea-only advocates will be accredited following assessment, the work they can do and information given to the public and clients about their status.
The BSB says that advocates who undertake only non-trial hearings will be permitted to become accredited under the scheme for a preliminary period of two years, and that they will be able appear in non-trial hearings in levels 1 and 2 cases, and in only some level 3 (Crown court) cases. The SRA, however, says non-trial advocates who have been appropriately accredited will be accredited for five years, and will be able to appear in all non-trial hearings at level 1, 2 and 3.
Meanwhile, the BSB says that those requiring non-trial accreditation must notify their regulator at the outset that they intend to register to do only non-trial work; the SRA says agreement has yet to be reached on this.
In addition, the BSB suggests that non-trial advocates will be required to notify their clients of their status at the first meeting or the first opportunity to do so in writing. But the SRA says that this is a narrower interpretation of what was actually agreed.
The SRA contends that the agreement made is for each regulator to check their own regulatory arrangements to ensure clients are made aware of any relevant limitations on any advocate's practice.
According to the BSB, there will be searchable registers for all QASA accredited advocates noting their level and whether they are accredited as non-trial advocates.
But the SRA says that while there has always been a proposal for registers of all advocates accompanied by their level, there has been no agreement that some advocates should be noted on the register as 'non-trial' advocates.
An SRA spokeswoman said: 'There is no agreement to create a separate category of non-trial advocates. All advocates will be trial ready and will need to be judicially evaluated if or when they start to conduct trials.'
SRA chief executive Antony Townsend said he hoped the first phase of the scheme would begin in July, with advocates notifying their regulators that they are seeking assessment. At the same time, he said, a consultation will be published to finalise remaining details. The regulators hoped to get judicial evaluation started in the autumn. Assessment centre evaluations, he said, will not begin until the scheme is fully up and running.
Townsend told the Gazette: 'Fundamentally there is an agreement that was brokered with the LSB.' He said that the differences over non-trial advocates are 'not fundamental' and will not derail the scheme. 'There are some points of implementation that have not been fully thrashed out. But the joint implementation group will work through them,' he said.
Townsend added: 'Ultimately we'll sort it out by consensus then consult the LSB. Each regulator has to make its decision, but the LSB can intervene if necessary.'
BSB director Vanessa Davies said: 'These are no more than differences of interpretation of the basic agreement that will be resolved in the working out of the final operational details and are not fundamentally different positions.'
Welcoming the agreement for a common assessment model for solicitor advocates and barristers, chair of the Solicitors Association of Higher Court Advocates (SAHCA), Yvonne Spencer, said there remained concerns over the capacity of trial judges to undertake assessments.
She said SAHCA wants to see a thorough evaluation of the scheme to demonstrate the effectiveness of judicial evaluation. To date, she said, the regulators have produced no evidence to demonstrate that it is the only method to monitor advocacy standards.
Law Society chief executive Desmond Hudson said: 'We have yet to study the details of this agreement but in principle we welcome an agreement between the regulators on a common scheme to ensure standards of advocacy. This assurance of competency in the criminal justice system will benefit clients and the delivery of justice. A proportionate system which requires advocates to demonstrate their competency is clearly the best way forward for the profession,' he said.