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Criminal advocacy scheme delayed as local government solicitors express concern

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The launch of the controversial Quality Assurance Scheme for Advocates (QASA) is to be postponed after the regulators behind the project admitted that “valid issues” had been raised during consultation.

The delay came as local government solicitors expressed concern that under the scheme there would not be a level playing field between barristers and solicitor advocates handling regulatory work.

The consultation on QASA – which is being developed by the Joint Advocacy Group comprising the Solicitors Regulation Authority, the Bar Standards Board and ILEX Professional Standards – was launched in August and had been due to close on 7 October. It will now run until 7 November. The original intention was to implement QASA in December 2011.

In a statement the JAG said the issues raised during the consultation were “likely to involve some adjustments to the scheme to ensure that there are not unintended consequences, and a postponement of the full launch”.

A spokesman said: "We remain very committed to the introduction of a single set of standards for criminal advocates as soon as possible, but our priority is to develop a scheme which protects the public interest, while being both proportionate and consistent. A number of valid issues on how the scheme can operate most effectively have been raised during the consultation period.

"As responsible, public interest regulators, we must take the time needed to look at these in more detail, to ensure that the scheme meets our public interest objectives.”

The JAG refused to say what the “valid issues” were. However, the scheme has come under attack in recent weeks from the Criminal Bar Association, which the Law Society Gazette reported was unhappy about Legal Services Commission plans to link the payment of advocates to their level of accreditation under QASA.

The Solicitors Association of Higher Court Advocates (SAHCA) meanwhile warned in August that QASA was too “bar-centric” and called for changes to representation on the JAG to ensure the SRA was represented by a board member with higher rights.

SAHCA chairman Jo Cooper suggested that the scheme would have “a massive impact on all levels of advocate, not only around 8,000 higher rights advocates, but also around 30,000 lower courts advocates who will lose all rights of audience if they fail to jump through the new accreditation hoops.”

Cooper added that solicitors would be disproportionately affected by “the most intrusive and expensive regime so far devised for advocacy”.

Local government solicitors have also expressed concern at the scheme. In his submission to the consultation Ian de Prez, a solicitor advocate at Suffolk Coastal District Council, took issue with its impact on solicitor advocates with criminal higher rights who specialise in regulatory matters rather than general crime.

De Prez said the JAG scheme acknowledged that advocates with specialist regulatory practices were in a special situation where the regulatory risk was small and a scheme like QASA was not appropriate, “at least for the time being”.

He pointed out that the parts of the consultation relating to the Bar took up this concern. “It is made clear that members of the Bar – whatever their practice model – practising in regulatory matters are not covered by the scheme,” de Prez said. “There is a definition of criminal proceedings that makes it clear that it is a term of art meant to cover general crime but not regulatory matters such as planning, environment, health and safety. Furthermore there is a generous extension of this principle to cover hybrid indictments and other matters within the barristers’ expertise.”

De Prez said he found it “surprising” that the SRA rule changes were not drafted in the same way. “I assume that this is unintentional, given that the scheme is supposed to provide a common scheme for all advocates regardless of their professional background,” he suggested. “The draft rules appear to assume that all solicitors exercising their higher rights of audience in the Crown Court will need to be accredited at level 2 or above which is plainly wrong.”

The Suffolk Coastal lawyer therefore called for the SRA rules to adopt the same definition of criminal advocacy and proceedings as the Bar rules.

De Prez told Local Government Lawyer that the point he was making had a bearing on all local government lawyers even if they do not go to the Crown Court. “The draft BSB rule changes would mean that an employed barrister could prosecute a planning, food hygiene etc case in the Magistrates Court without level 1 accreditation,” he said. “The SRA and ILEX rules must be amended to the same end.”

De Prez also suggested that an anomaly of the scheme in its current form was that lawyers could have to be accredited but non-lawyer colleagues representing councils in the Magistrates’ Court under s. 233 of the Local Government Act 1972 would not.

Local authorities will typically use non-lawyer officers in areas such as education or routine trading standards cases, unless the matter is contested or complex when it will be passed to a lawyer to handle. As the officers are not members of the relevant professional body, they would not have to be accredited under QASA.

De Prez’ concerns are also shared by Naomi Matthews, senior solicitor advocate at Nottingham City Council. Any exemption for barristers carrying out regulatory work “should apply across the board to all solicitor advocates as well”, she said in her submission.

Matthews also argued that accreditation at level 2 of QASA should not be dependent on jury trials, as this would mean no local government solicitor would be able to achieve that status.

“There are many Solicitor Advocates who are competent in various hearings at the Crown Court but may not undertake jury trials,” she said. “Otherwise it would seem that the higher courts qualification that we have would be rendered a nullity.”

In June, the Law Society warned that QASA could be “disproportionately costly and of uncertain efficiency”.

Philip Hoult