Closed Consultation

The purpose of this recommendation is to prevent an advocate being judged on a case in which s/he was instructed late, without the judge being aware of that fact. Implementation of this proposal requires amendment to the existing CAEF to accommodate an additional field that captures the date when an advocate was first instructed. A revised CAEF highlighting the proposed change is at Appendix 1.

If adopted, an advocate will be required to complete this field along with existing fields on the CAEF before submitting the form to a judge prior to each required evaluation. No negative impacts have been identified with the adoption of this proposal.

This recommendation is designed to ensure that, when the trial judge makes their evaluation, s/he is aware of the extent to which the advocate has been involved in the case prior to trial. Implementation of this proposal requires amendment to the existing CAEF to accommodate an additional field that captures whether advice on evidence was provided by them. A revised CAEF highlighting the proposed change is at Appendix 1.

If adopted, an advocate will be required to complete this field along with existing fields on the CAEF before submitting the form to a judge prior to each required evaluation. No negative impacts have been identified with the adoption of this proposal.

The current QASA Handbook outlines scenarios under which it is inappropriate for an advocate to be evaluated by a judge. This includes assessment by an advocate's husband, wife, civil partner, or any current or former partner. It also states that if an advocate has a connection with a judge, this must be disclosed to the regulator when the advocate submits their evaluation. The recommendation made by the Divisional Court is designed to provide a necessary further safeguard for the advocate, in permitting flexibility for a judge to decline to conduct an evaluation where there are other circumstances which they consider would make the assessment unfair, thereby helping to maintain the integrity of the Scheme.

We set out the proposed wording to give effect to this recommendation in paragraph 2.74 of the Scheme Handbook (Appendix 2). We recognise that implementation of this proposal could make it difficult for some advocates to meet the accreditation, progression and reaccreditation requirements of the Scheme. This may be particularly the case for advocates who have limited access to evaluations by different judges because they are involved in long trials or they undertake only a small number of trials.

This risk is not new and we have not identified any further negative impacts from adoption of the current proposal. We have already agreed to support those advocates who experience difficulties in getting access to the required number of judicial evaluations by recruiting and retaining a pool of independent assessors who can be deployed in circumstances where the requisite number of judicial evaluations cannot be achieved². An individual advocate will not bear the cost of requesting an independent assessor. Independent assessors will receive the same training as the judiciary to ensure consistency.

In addition, the Scheme gives advocates at Levels two, three and four, 24 months from the date of provisional accreditation in which to apply to their regulator for full accreditation. Extensions to this period are available. We believe this approach gives advocates long enough to obtain the necessary evaluations even where a judge declines an evaluation request.

If this proposal is implemented, JAG will monitor the exercise of judicial discretion to decline to conduct an evaluation and its impact on the operation of the Scheme.

Assessment in a third trial is required if the advocate does not demonstrate the required level of competence at the first two trials. The current Scheme permits this evaluation to be obtained from one of the judges who has undertaken the first two evaluations or from a third judge. The purpose of the proposed change is to ensure that the third and final evaluation to determine an advocate's competence is unaffected by the judgements made about the quality of their performance in previous assessments. Draft wording which gives effect to this proposal by an amendment to paragraph 2.74 of the Scheme Handbook is attached at Appendix 2.

We have not identified any negative impact from the implementation of this proposal. We do recognise that for some advocates access to a third judge may be difficult. We have outlined in paragraphs 15 and 16 how the existing Scheme can support advocates in this situation.

The Divisional Court identified certain areas of ambiguity in the Scheme's written material and called for steps to be taken to ensure that requirements are completely clear to all called upon to comply with it.

The QASA Handbook is designed to provide guidance to all advocates to help them understand the requirements of the Scheme. We acknowledge the Divisional Court's recommendations and as a result propose a number of minor changes to the Handbook to ensure greater clarity, to take into account delays to implementation of the Scheme as a result of the judicial review litigation and to reflect minor administrative changes in the SRA QASA regulations exempted by the Legal Services Board on 31 March 2015. Appendix 2 provides full details of these amendments. However, in summary they are:

• Removal of the registration timetable and reference to registration phases, see paragraph 2.11 appendix 2;
• Clarification on how to complete the CAEF, see paragraph 2.76 appendix 2;
• Clarification on where an advocate can reapply for provisional accreditation at a higher level, see paragraph 2.47 appendix 2;
• Clarification on transitional arrangements for recently appointed QC’s see paragraph 2.37 appendix 2.
• Clarification on the period of full accreditation on registration for those solicitors that have recently obtained their Higher Rights of Audience qualification, see paragraph 2.38 appendix 2.

The judgment handed down by the Court of Appeal called for the BSB to address its QASA Rules so that the scope of the advocate's right of appeal and how it will work in practice is clear. Appendix 3 outlines proposed changes to the Appeals section of the BSB QASA Rules so that the circumstances and process by which a barrister can appeal to the BSB are clear. Minor changes have also been made to these rules relating to transitional arrangements to reflect changes to the  registration timetable. No negative impacts have been identified with implementation of this proposal.

To address concerns raised by the Court of Appeal regarding application of the appeal policy, the SRA also proposes to make minor amendments to Regulation 20.3 of its QASA Regulations 2013. The change provides greater clarity on their application and the circumstances in which an advocate may challenge a judicial evaluation of their competence. The change clarifies that there is no appeal to the SRA against the decision of an assessment centre, because the assessment centre has its own internal appeals process. In addition, an appeal against a judicial evaluation can be brought on the grounds of procedural error or irregularity. This wording reflects the arms length nature of our appellate role, given that we are not present during a live judicial evaluation, however will consider challenges such as bias or unfairness in the judge's approach. Appendix 4 contains the proposed rule. No negative impacts have been identified with this proposal.