Poor quality

On 15 November the Lord Chancellor, Ken Clarke, announced proposals to cut £350m from the legal aid budget 'to ensure that legal aid is provided to the poorest and is preserved for the future'. The future coincidently was also the theme of the annual conference held by the Solicitors Association of Higher Court Advocates (SAHCA), 'Advocacy 2020' which was held

a few days before his announcement and was a platform for speakers and delegates alike to share their views on the highly controversial Quality Assurance Advocacy (QAA) scheme for criminal advocates, headed up by the Joint Advisory Group.

The scheme has sprung from the ideology that there is a 'problem' in the quality of criminal advocacy. I believe this ideology has come from the Bar and its futile attempt to maintain a closed-shop monopoly on advocacy for their self-preservation. This at a time when the prime minister has warned countries at the G20 of the impact of protectionism by currency manipulation; the Bar it seems has not seen the parallels in its own actions towards solicitor-advocates and the dangers of undermining fellow legal professionals.

The proposed legal aid cuts also bring with them the message that the legal market is in a delicate state and that any manipulation by legal players could damage the long-term provisions of legal services by legal professionals.

The advance of the alternative business structure will be a real and formidable challenger to the legal profession and the unwelcome restrictions that could be imposed by the introduction of the QAA scheme on criminal advocates from traditional firms and chambers may play into the hands of these businesses and place all advocates at a disadvantage as it is likely the costs of advocacy will be tightly controlled by these organisations.

Driving force

It is the question of 'costs' that is the driving force behind this non-evidential scheme; although barristers are still routinely instructed in final hearings and trials, they are rarely instructed from the beginning of the case, and solicitors, with or without higher rights, have now taken a lead role in advocacy up to that stage. The growing stream of solicitor-advocates who appear for clients at the trial and the higher courts are also seen to encroach on brief fees which in the past would have been shelled out to barristers in large doses.

The Bar will, however, never admit that their motivation for a quality assurance scheme is anything but their desire to maintain advocacy. But this cannot be true, especially as there has never been any quality assurance scheme in the past 300 years since the time of William Garrow who instigated the present adversarial system, appearing as advocate for disadvantaged defendants at the Old Bailey.

No evidence

The lack of evidence-based research also questions the need for a quality assurance scheme as apart from the outspoken remarks by two or three judges which have been reported in the press about solicitor-advocates. There has not been a widespread cry by judges as to the quality of the advocacy heard before them. This could be because the judiciary is not there to assess the quality of the advocacy, but to judge the case. The independent and unique role played by the judiciary should not be tarnished by imposing conditions on judges to 'traffic light' advocates' performances as this could have serious consequences to the integrity of the judge and may lead to accusations of bias and discrimination against them causing irreparable damage to the image of our justice system.

Judicial intervention is therefore not the way, but that does not mean that there should not be a scheme to maintain the quality of advocacy in our courts. All legal professionals already have a duty to ensure that they have the requisite skills and experience when advising and representing clients and any quality assurance scheme should take that on board.

Hampering needs

The current CPD system allows associations such as the SAHCA to provide courses which are voluntary, accredited by the Solicitors Regulation Authority and attract high-calibre individuals, to include figures from the judiciary to provide training to an ever-growing membership of solicitor-advocates.

It should therefore be down to organisations such as SAHCA, which have a track record of providing high-quality training, to run any quality assurance scheme that comes into existence rather than a new, foreign body which may not be able to meet the needs of the advocates and may even hamper them while it struggles to establishes itself in this volatile legal environment.

So the jury is out for the future of advocacy, at least until next year.