Is the quality assurance for advocates scheme designed to exclude solicitor advocates?

After years of development, a quality assurance scheme was published by the joint advocacy group (JAG) on 13 July 2011. It envisages four levels of advocacy banding. Level 1 covers work in the magistrates' court; level 2 covers the youth court and Crown Court; level 3 is for more serious Crown Court, with level 4 covering the most serious Crown Court business. 

Applicants will self-select the level at which they apply for initial accreditation, subject to a requirement they demonstrate experience at that level and to judicial confirmation. To progress to a higher level, applicants may have to submit to judicial evaluation (JE). For those staying at the same level, there is mandatory re-accreditation every five years, or all rights will be lost.  

For those wishing to practise at levels 2 and above, applicants must demonstrate recent jury trial advocacy in contested cases at the appropriate level. At the time of writing, the quality assessment mechanism proposed for accreditation at level 2 and above is judicial evaluation only or a combination of JE and assessment centre.

The allocation of cases to levels has caused controversy. The Solicitors' Regulation Authority (SRA) had disclosed an intention to remove all solicitors from youth court cases unless accredited at level 2, replacing specialist youth court practitioners with an army of junior jury advocates. It seems that the SRA are to abandon this position. 

It also emerged that some straightforward cases (eg possession of class B drugs with intent and theft of a high value car) were to be classified as level 4. Junior briefs were usually to be reserved for those one level below the leader, thereby excluding level 2 advocates from junior work save in exceptional cases.  

Regulatory framework

SRA has created JAG, a six-person committee made up of representatives of SRA, ILEX and the Bar Standards Board (BSB) to develop QASA. This includes Mandy Gill and Yve Schelhaas for the SRA and Sam Stein QC for the BSB. 

The quality assurance advisory group (QAAG) is a larger committee, chaired by Sir John Thomas, including representatives of the Bar, Law Society, CPS and LSC. The Law Society representatives are Mark Stobbs and Michael Caplan QC. 

The Legal Services Board oversees the work of the SRA and other ?approved regulators? including BSB and ILEX. David Wolfe of the BSB has indicated that the LSB considers the imposition of the QASA scheme to be inevitable.

A Bar-centric scheme?

We believe that this Bar-centric scheme has been designed by and for the Bar, whose new-found enthusiasm for QASA is less about quality-assuring barristers than about excluding as many solicitors as possible. 

The requirement of regular and recent trial advocacy will tend to exclude those with mixed practices, or who work part-time, or combine
advocacy with litigation. For higher levels, the requirement of regular trial advocacy at these levels will tend to exclude anyone not working in large chambers of full-time advocates. The pre-qualifying criteria will prevent many solicitors of undoubted competence being eligible to seek evaluation: they have simply been ruled out of the scheme by design. 

At an SRA consultation event, held in London on 25 July 2011, 40 advocates attended. All but three felt that, under the proposed scheme, they would be excluded from the level of their existing practice because they would fail to meet the pre-qualifying criteria of regular and recent trial advocacy at the same level. Ten felt the pre-qualifying criteria would preclude them from doing all advocacy in the Crown Court because their practice did not include jury trials.

Consultation exercise

The scheme was published in July. SAHCA wrote to JAG on 2 August, inviting it to consult on the merits of the newly published scheme, raising 19 discrete areas of concern. These submissions were supported by LCCSA and CLSA. In due course, the consultation was published, limited to methods of implementation.

Following further submissions, the consultation period was extended to 7 November 2011. JAG has indicated changes are to be made. The SRA recently announced they intend to roll out the scheme in April 2012 (on what basis is unclear) and conduct a full impact assessment before then.   SRA considers that some changes to the scheme are necessary to avoid ?unintended consequences?:  

• Youth court cases to revert to level 1;
• Crown court requirement of active trial advocacy to be reconsidered; 
• Distribution of cases between levels 2, 3 and 4 to be reviewed, to ensure no reservation of work to inappropriately high levels;
• Roll-out initially voluntary from April 2012;
• Roll-out by circuits;
• SRA to conduct evidence-gathering exercise to ascertain potential impact on practice type.

At the time of writing, SAHCA, LCCSA and others are consulting with members on various further amendments, including removing the judicial evaluation component in the ?assessment centre? route; quality-assuring judicial evaluation before implementation; full pilot before implementation; and restructuring payment rates in accordance with QASA.

SRA and LSB have not shown that there is a need for QASA. If a quality assessment framework is required, it should be predicated on evidence-based research and be independent, objective, targeted and proportionate. It should also be fair, applying equally to all advocates, regardless of professional background. It should not discriminate on account of ethnicity, gender or practice-type. None of these criteria are currently met.    

The present scheme is deeply flawed. It may be unlawful. We have a choice about whether to engage with the regulators. For the time being we feel that it is sensible to do so, to continue to point out the many absurdities of the scheme to those specialist architects who claim to be blissfully unaware of them. When a final scheme is presented, a judgment can be made about the way ahead.