Why the regulation of advocacy is important

The BSB, SRA and ILEX are consulting on how to regulate criminal advocacy through a Joint Advisory Group (JAG). 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.

There is evidence that the judiciary were right to raise concerns about advocacy standards (I declare an interest as part of the team that produced this research*). That evidence is based on a small sample of applicants but used a range of assessment techniques including simulated advocacy designed by experienced evaluators – themselves former practitioners – in collaboration with senior practitioners and members of the judiciary who were heavily involved in the assessment process.

The results were concerning, to say the least: significant numbers of applicants under the pilot failed assessments. It is possible that the sample does not represent standards of advocacy in the profession (note though: applicants were volunteers and criminal practitioners with significant levels of experience). That means that the level of quality in reality could be significantly better than the assessments revealed or it could be significantly worse.  Although the research identifies significant potential problems, the regulators have done nothing, it appears, to clarify the risk posed by poor quality.

With legal aid cuts firmly on the agenda, the professions understandably want to rein in any unnecessary cost. In times of economic difficulty, particularly, the desire for light touch regulation is strong. I think that is a mistake and I think it is potentially a mistake of significant proportions. There are two reasons which I think it is important to articulate. Firstly, the professional regulators promoting the scheme as set out in their consultation document are likely to do significant damage to their reputation with other stakeholder groups and, in particular, their supervising body, the Legal Services Board. The paper is deeply flawed both in terms of its incompleteness, its evidence base and the solutions it proposes. The absence of any assessment of the risk to be regulated is an error of schoolboy proportions. The JAG document makes no meaningful attempt to establish what levels of competence are amongst advocates, inspite of evidence from the judiciary, practitioners and our research that there is cause for serious concern. JAG’s solutions may meet the short-term needs of the Bar but they do not, I believe, meet their longer term needs. This leads me onto my second reason which may prove to be the most important one.

There is about to be a brutal and potentially calamitous fight over the future of legal aid. The economic pressure on legal aid is going to lead to a significant downward pressure on the quality of legal aid work including advocacy. The key question the profession has to ask itself is whether the proposals that are set out in the JAG consultation are likely to provide sufficient protection against pressures to cut quality. A government which seeks to cut the cost of legal can be resisted (to a point) with robust evidence of declining standards of quality. I do not believe the scheme will provide that evidence. I suspect that politicians will find it easier to side-step a system of judicial evaluation which looks a lot like a system of judicial references and a traffic light system which judges may be reluctant to use (particularly if judicial assessments can be sought as part of appeals against sentence and conviction) or will only use in the most egregious of cases. Supporters of judicial evaluation will plausibly claim that judicial influence is strong with politicians and that is one reason in favour of using it as part of a quality scheme. That’s a good point but it may not be a point that is strong enough on its own: look at the crisis in the family courts and judicial capacity to influence that. Of course, a system that has a well designed and functioning system of judicial evaluation is the stronger for it, but on its own it has little chance of protecting quality that the public interest requires.

* Conceivably, a more onerous testing regime – if it were implemented and if it led to external assessment organisations being involved, might lead to more income for my employer.

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