Advocacy Standards: ‘The Unsatisfactory Must Go’ (But They Probably Won’t)

By The Law Horse on

The Quality Assurance Scheme for Advocates (QASA) is ostensibly designed to ensure that criminal advocates perform to a competent standard in court; in practice, it will add little but another layer of bureaucracy to a justice system already groaning under the paper weight of a rainforest, writes The Law Horse

But the backroom machinations are for the time being over and QASA will soon be upon us all. This week, the SRA invited all those professionals that it regulates to register for the scheme.

QASA is a political conceit. The Bar Standards Board – having gazed at the stars and identified the culprit of declining advocacy standards – is content with a scheme it believes will turn the tables on solicitor-advocates. The Law Society is satisfied, having secured a major concession in the special status granted to the oxymoronic plea-only advocates. The Criminal Bar Association is still spoiling for a fight but ultimately is unlikely to land the first blow.

I don’t share in any ideological reticence towards QASA. As a public service profession it is right that excellence should be expected of our members. This means that the unsatisfactory performers – few and far between though they are – must go. Pupillages and training contracts are thin on the ground and it is unjust that enthusiastic, bright and dedicated graduates find their path blocked by those less competent than themselves. Correctly implemented, QASA has the potential to separate the goats from the sheep

There are numerous concerns with QASA. Firstly, it doesn’t purport to establish a gold standard, only a minimum standard; despite this, QCs, the best advocates in the business, are to be subjected to the same requirement of base-level scrutineering. Meanwhile, fears have been voiced by senior judges over the conflicted relationship between an advocate, the client and the bench, citing the unwelcome possibility of defensive advocacy. Then there is the concern that dissatisfied clients may demand copies of their advocate’s assessment in order to bolster an appeal.

Finally, few are convinced by the bizarre arrangement concerning plea-only advocates, which could, it is feared, create the perception of a perverse incentive to encourage clients to plead guilty. If you are not fit to conduct a trial, you are not fit to stand up in court.

The current system functions on the simple basis that if an advocate performs badly in court, they will not be instructed again. As this time honoured approach is tossed under the bendy bus of progress, I’ve been thinking about alternative ways we could protect advocacy standards – which I’ll be posting here on Thursday for your consideration.

The Law Horse is an anonymous barrister at the criminal Bar of England and Wales, who tweets at @thelawhorse.