Open Consultation

Assuring advocacy standards

21 August 2019

About this consultation

As a public interest regulator, we are committed to making sure that solicitors practising criminal and civil advocacy meet the high standards we and the public expect. In doing so, our approach should be proportionate, targeted and based on clear evidence of risk.

This consultation outlines proposals to improve how we currently regulate the quality of civil and criminal advocacy.

You can find our initial impact assessment in annex 1.

This consultation is running from 21 August until 13 November 2019.

After this consultation closes, our next steps will be to collate and analyse all the responses. We will then decide what proposals we need to take forward.

Background to consultation

  1. The purpose of this consultation is to outline targeted proposals to improve on how we currently regulate advocacy and protect consumers by:
    • revising our arrangements for higher court advocacy by:
      • Introducing revised Higher Rights of Audience (HRA) criminal and civil standards
      • Introducing a single, centralised HRA assessment
      • Requiring that the HRA assessment is taken after admission
      • requiring youth court solicitors to pass our higher court advocacy qualification where they are acting as advocates in a case which would go to the crown court if brought against an adult.
    • providing resources to help solicitors meet our standards.
    • supporting reporting about advocacy standards to help us act when we have concerns about a solicitor’s competence to conduct advocacy.

Our rationale for change

Why are we concerned with the standard of advocacy?

  1. Criminal and civil practice are high risk areas of legal practice. Poor advocacy may result in consumer detriment, miscarriages of justice and threaten the rule of law. Wrongs may go unpunished or clients may lose basic rights and freedoms. In either case, financial redress is inadequate. With so much at stake, it is crucial that solicitors’ advocacy is of a high standard: a fair justice system relies on effective advocacy.
  2. Clients involved in both civil and criminal trials may be vulnerable. This could be because of their personal characteristics (such as: age, drug, alcohol or mental health problems, low literacy skills or for whom English is a second language). We know, for example, that 33 percent of boys and 41 percent of girls entering youth custody have mental health concerns. But even the most sophisticated and empowered clients can be vulnerable when they are dealing with critical, often life-changing and distressing circumstances.

Evidence of standards falling short

  1. We know that there are many competent solicitor advocates who meet our standards and provide a high standard of service to their clients.
  2. However, persistent concerns have been raised about the standard of solicitors’ advocacy. These have mainly focused on criminal rather than civil advocacy. And although most solicitors practise their advocacy in the magistrates’ courts, concerns have been focussed on practice in the higher courts. Concerns include:
    • The Jeffrey Review: Commissioned by the Ministry of Justice in 2013, this raised concerns about the quality of criminal advocacy. It reported Judicial disquiet about the quality of advocacy; concern over solicitors retaining work beyond their competence and concern over the advocacy training of solicitors and solicitor advocates.
    • Judges involved in the judicial review proceedings challenging the introduction of the Quality Assurance Scheme for Advocates (QASA) concluded that there was enough evidence of poor practice in criminal advocacy, given the need for public protection in this area, to justify the introduction of QASA1.
    • Youth courts advocacy proceedings review: Published in 2015 by the Bar Standards Board (BSB) and the Chartered Institute of Legal Executives (CILEx), this found that advocates were lacking in training in specialist procedures and sentencing powers in the youth courts. Advocates also had difficulty in communicating and engaging with young defendants and were not always adequately prepared.
    • The Taylor Review of the youth courts system: Commissioned by the Government in 2016, this recommended that training should be mandatory for legal professionals in the youth courts.
    • Coroners’ court advocacy: Bishop James Jones’ report into the lessons to be learned from the Hillsborough litigation (2017)2 and Dame Elish Angiolini’s report into Deaths and Serious Injuries in police custody (2017)3 both criticised overly aggressive and adversarial advocacy in coroners’ courts and enquiries.
  3. We have carried out research, commissioned jointly with the BSB, to understand in more detail the size and nature of these concerns and where advocates are failing to meet our standards. But it has proven difficult to establish robust evidence that accurately identifies how widespread the problem is.
  4. Our work involved qualitative interviews with 46 circuit judges and four high court judges. Key findings from the research were:
    • Most of the judges thought that most current advocacy is of an adequate standard but viewed good/very good advocacy as relatively infrequent.
    • While the quality of advocacy was generally competent, there was room for improvement across several areas, especially in relation to core courtroom skills such as case preparation and dealing with witnesses.
    • The judges tended to think that the quality of advocacy had declined over time. Almost two thirds of interviewees said that it was common practice for advocates to take on cases beyond their level of experience.
    • Judges felt regulators should be more robust in responding to poor advocacy when alerted to problems. There was also some uncertainty amongst interviewees about whether or how they should report poor advocacy to regulators.
    • In many circuits, judges knew and could identify who the poor advocates were.
  5. We have also published our thematic review of criminal practice. This found that solicitors practising criminal advocacy relied heavily on the number of years’ post qualification experience as a measure of competence and to justify undertaking little ongoing professional development.
  6. But all this evidence is anecdotal. There is little evidence about whether poor advocacy is a widespread problem. We have looked at our internal data, but this does little to identify whether there is a widespread problem. For example, we receive relatively few reports of poor advocacy from judges and the courts. Only 89 complaints were received between 1 January 2015 and 28 February 2018. Of these, only three percent related specifically to the solicitor’s competence.

The Quality Assurance Scheme for Advocates

  1. We have previously attempted to address concerns about criminal advocacy through the Quality Assurance Scheme for Advocates (QASA). This scheme was developed over many years in collaboration with the BSB and CILEx. It was subject to a judicial review from barristers claiming it was unlawful. The litigation was appealed to the Court of Appeal and then to the Supreme Court. Despite all courts upholding the scheme and ruling that there was enough evidence to justify it, none of the regulators have implemented it.
  2. We no longer consider it fit for purpose or in line with our current regulatory approach. It would require all solicitors to be formally and periodically assessed, despite the fact they have already been assessed through the qualification process, and regardless of whether we have concerns about their competence. We will be applying to the Legal Services Board to remove the QASA regulations.

How do we currently assure standards of advocacy?

  1. We automatically grant all solicitors rights of audience in the magistrates’ court and the County Court at point of admission. By then, they must have passed advocacy assessments on the Legal Practice Course (aligned to basic skills needed for day one as a trainee) and the Professional Skills Course (aligned to rights of audience on admission).
  2. We require all solicitors who want to practice advocacy in the Crown Court and High Court to pass an additional assessment (the HRA) which tests their knowledge of evidence, procedure, witness handling, ability to conduct a full trial and ethics in the higher courts and their advocacy skills.
  3. Following admission, solicitors have an obligation under our existing rules to act only where they are competent to do so. This will continue to be the case when our new Standards and Regulations are introduced in November 2019.
  4. Our Continuing Competence regime requires all solicitors to regularly reflect on the quality of their practice and address any identified learning and development needs. Solicitors should use our Statement of Solicitor Competence to do this. The statement was developed with a wide range of stakeholders and reflects the competences required for safe practice. Solicitors must make an annual declaration to tell us that they have done this. We follow up with solicitors who have not completed this requirement.

Should we change how we currently assure standards of advocacy?

  1. As stated, there is a lack of robust evidence on the scale and nature of concerns about the standard of advocacy provided by solicitors. We have reflected carefully on the available evidence and concluded that there is justification for taking targeted action to improve our current approach to promoting high standards. This is because:
    1. Advocacy remains a high-risk practice area and we have concerns about the currency and consistency of our higher rights of audience assessments.
    2. This area is of current interest to key stakeholders and relates to our public interest obligations to protect consumers of legal services.
    3. The concerns about advocacy standards, particularly criminal advocacy in the higher courts, have persisted for several years but with limited hard evidence. We wish to improve the information we have about solicitor advocates so that we can target our efforts where we have evidence of a problem.

Benefits

  1. We have worked with a wide range of organisations to help us identify the impacts of our proposals. We have set out the potential impacts and benefits we have identified if we implement our proposals in our initial impact assessment (see Annex 1). Subject to the outcome of this consultation, we will evaluate the impact of our proposals after they are implemented.
  2. The key benefits of our proposals are:
    1. The public and other stakeholders will have greater assurance that solicitors practising criminal and civil advocacy have the necessary skills and knowledge.
    2. Solicitors will have better resources to help them meet the standards we expect.

Acknowledging challenges

  1. We have summarised the key challenges from our initial impact assessment and mitigating factors in the table below. We welcome views from stakeholders on the impacts we have identified.
Challenge Mitigating this challenge
Revised HRA standards could increase the failure rate and reduce the supply of solicitors in the higher courts.

Our intention is to standardise the HRA assessment, not to introduce a more difficult assessment.

Our data tells us there that there is already a sizeable number of solicitors (6836) who have the necessary qualification to provide advocacy in the Crown Court.

If we proceed with this proposal, we will monitor the assessment failure rate and to make sure we do not unintentionally restrict the supply of solicitors. We will also issue guidance on the standards and assessment level to provide clarity to training providers and candidates.

A single assessment provider could reduce the availability of assessments We will take steps to make sure that there is an appropriate level of assessments provided to meet demand and that these are accessible for those with disabilities.
A single assessment model could increase assessment cost

We will include cost controls in any agreement with a provider of the single assessment. Training will be provided through a competitive market.

A single provider model could lead to economies of scale, reduced operational costs and increased revenue as a result of whole market share.

Changing existing rights of audience in the youth courts, to require an HRA qualification for cases which would be heard in the Crown Court, were they against an adult defendant could impact on the supply of solicitors.

We know from our research that 40 percent of solicitors with criminal HRA already practise in the youth courts. Individuals who currently hold criminal HRA would still be able to practise in the youth courts as they do now for all case types.

Solicitors without HRA can continue to provide advocacy as they do now except for those indictable only, or serious triable either way offences, which would be heard in the Crown Court if they were brought against an adult defendant. For these cases, the solicitor can still undertake the litigation for the young person.

Arrangements for assessing the advocacy skills of intending solicitors

The Solicitors Qualifying Examination (SQE)

Background

  1. In our response to the second SQE consultation, we made clear that we will require all intending solicitors to undertake a rights of audience assessment before admission.
  2. We recognise that solicitors have full trial rights in the lower courts and have considered whether we should include witness handling in the SQE assessment. We have concluded that we should not. It would be disproportionate, expensive, and out of step with most solicitors’ work. Through our testing phase of development of the SQE, we will therefore be piloting a role-play exercise in the form of a plea-only or interim application.

Our approach and proposal

  1. Against this background, we have considered whether we should place a restriction on solicitors’ rights of audience in the lower courts until they have been assessed in witness handling. We take the view that we should not do so. Evidence of concerns relates to criminal advocacy practised in higher courts and in the youth courts, not the magistrates’ court. The risk of a broad restriction on practice in lower courts is that it could discourage solicitors from practising advocacy, and therefore restrict competition and restrict access to justice.
  2. Instead we will propose relying on solicitors’ and firms’ obligations in our code of conduct to undertake only the work which they are competent to perform. We will supplement this with guidance and support, and rigorous enforcement action where standards fall short.
  3. We will look to further develop our existing package of measures to encourage better practice in the youth courts, where there is evidence of concern, including a greater emphasis on vulnerable witness and client training in both the SQE and the HRA qualification as well as encouraging reports of poor practice.
  4. We will keep this approach under review. If evidence of concerns emerges, we will look again at whether a restriction, further assessment or further regulation is required.

Question 1

Do you agree with our proposal not to change existing practice rights, and to rely on the obligation on solicitors not to undertake witness handling where they are not competent to do so?

Revising our arrangements for higher court advocacy

Background

  1. The assessment for the HRA qualification is run by several different organisations who we accredit. Each provider designs its own assessments, so assessment models vary across providers. All the providers also offer preparatory training for the qualification as well as delivering and marking the assessments. The standards for the assessment have not been revised for some time.
  2. We consider that we need to review and update the current assessment approach because:
    1. The standards do not reflect the requirements of modern practice, including the increasing awareness of the needs of vulnerable clients and witnesses.
    2. We cannot be confident that candidates are being assessed to an equivalent standard across providers.
    3. We want to remove any potential conflict of interest by requiring the assessment provider we appoint to have strict safeguards separating assessment and delivery of training.

Revised Standards

Our approach and proposal

  1. We have reviewed the standards for the HRA assessments to make sure they properly assess the competences that are required by modern day higher court advocates. We have:
    1. included skills required for modern practice, for example, including standards on witness handling and dealing with vulnerable clients
    2. used clearer language and introduced more detail so that solicitors and assessment organisations better understand the required standard
    3. aligned assessment objectives with associated assessment criteria and the relevant knowledge, skills and understanding.
  2. We have produced revised standards through engagement with a wide range of external stakeholders including subject matter experts, current practitioners and existing training and assessment providers. We will also explore with the BSB and CILEx how we can ensure that these standards are aligned with those which apply to barristers and chartered legal executives.
  3.  We would welcome views on the Annex A and B.

Question 2

Do you have any comments on our revised HRA standards?

Introducing a single, centralised assessment

Our approach and proposal

  1. We have also looked at whether the arrangements for assessing the standards for higher court advocates are sufficiently robust. Currently, there is no single, standardised test for the HRA qualification. Instead, we delegate the responsibility for assessing competence to a range of providers.
  2. This means that if pass rates vary between providers, we do not know whether this is because of candidate cohorts of different ability levels, variations in the quality of teaching, or inconsistent standards. An extensive quality assurance regime could provide a measure of reassurance about consistent standards. But it would be resource intensive, and it would not provide the same assurance as a single, standardised assessment. In addition, HRA providers now provide preparatory training as well as assessment. This creates a potential conflict of interest and adds an extra challenge to assuring standards.
  3. Therefore, we propose to appoint a single assessment organisation for the HRA qualification. We will go through an open procurement process and will require that the appointed provider does not deliver training without our consent or where there is any perceived or actual conflict of interest. This will enable us to be sure that all candidates are being assessed against the same, consistent high standard.

Question 3

Do you agree that we should introduce a single assessment organisation for the HRA qualification?

Requiring that HRA assessment is taken post admission

Our approach and proposal

  1. We are aware that some aspiring solicitors take the HRA assessment as an elective course on the Professional Skills Course (PSC), before they have been admitted. We do not consider this to be appropriate for an advanced assessment of rights which only admitted solicitors may exercise.
  2. We therefore propose changing our regulations to make clear that the HRA assessment may only be attempted by admitted solicitors. This requirement will help establish external confidence in the qualification as a higher qualification, conferring greater practice rights than people gain on admission. In addition, it gives time for solicitors who wish to conduct higher court advocacy to get more experience of advocacy practice, through observation, or conducting simple applications or trials in the lower courts before they apply for their higher rights.

Question 4

Do you agree with our proposal that the HRA assessment can only be attempted by admitted solicitors?

New requirement for youth courts solicitors acting as an advocate in more serious cases

Our approach and proposal

  1. We propose requiring solicitors practising in the youth courts to have the criminal HRA qualification where they are acting as an advocate in any case which would go to the Crown Court if it involved an adult. The jurisdiction of the youth courts has changed to include most cases against an adult under 18, except for murder, manslaughter and certain firearms offences.
  2. Advocacy practice rights do not reflect this change: the youth courts are lower courts, and so solicitors practising there do not currently need to have the HRA qualification. This presents a risk to youth courts clients and could put them at a disadvantage compared to adult clients, even though they are likely to be more vulnerable.
  3. We believe that this approach is justified because it will:
    1. make sure there is a consistency of approach with cases brought against adults.
    2. protect youth courts clients who are charged with serious offences.
  4. Our analysis suggests that around half of solicitors currently practising in the youth courts already have the HRA qualification so only those without the qualification will be directly affected. We have conducted an initial impact assessment which will be published alongside our consultation. We will seek stakeholder views on the potential impact of this proposal.

Question 5

Do you agree that we should impose a new youth courts requirement that solicitors practising in the youth courts must hold the criminal HRA qualification where they are acting as an advocate in any case which would go to the Crown Court if it involved an adult?

Providing resources to help solicitors meet our standards

Background

  1. All solicitors, including advocates, have an obligation to maintain their competence throughout their careers. They must reflect on the quality of their work and address the learning and development needs they identify. All solicitors must make an annual declaration to us that they have done this.
  2. We recognise that practising criminal and civil advocacy presents specific challenges. We have already set out the concerns which have been raised about the quality of advocacy in the youth courts, in handling vulnerable witnesses and about the appropriateness of advocacy styles in inquisitorial settings such as enquiries. We want to provide resources to help solicitors practise competently in these sensitive and complex areas.

Our approach and proposal

  1. We have already developed online resources for practitioners in the youth courts to help them advise young people and children effectively. They provide support and advice on a range of issues, from communicating with young people with learning difficulties to working effectively with Youth Offending Teams.
  2. Our resources have been well received by practitioners and stakeholders. There have been more than 5,500 views of our materials. Our resources have been welcomed by the Association of Youth Offending Team Managers and the National Appropriate Adult Network. The UCL Great Ormond Street Institute of Child Health described our work as a “much needed initiative [which] provides poorly supported youth advocates with a good introduction to working with children and young people in the criminal justice system”.
  3. We will increase the support we provide to solicitors practising criminal and civil advocacy. We will build on the content of our youth courts tool kit. We propose to launch these resources in spring 2020.
  4. Through research and engagement with a wide range of stakeholders including our criminal practice and advocacy reference group, we have already begun to explore how we could provide additional support. For example, we could:
    1. make sure our standards are clear and accessible, and provide examples of them in practice, so that a solicitor can understand how to meet them
    2. develop targeted resources which concentrate on specific areas of concern, for example, building trust with Black, Asian and minority ethnic clients (BAME).
  5. We propose developing resources for the public and other stakeholders that explain the criminal and civil advocacy standards we expect of solicitors. This will help clients, including vulnerable clients, to recognise when a solicitor does not meet them. Using our Statement of Solicitor Competence as a starting point, we will work with the profession, wider stakeholders and the public to present advocacy standards in an accessible way.
  6. We will promote these resources to the public and stakeholders, for example, using Legal Choices. Legal Choices is the website run by legal regulators in England and Wales to provide information about legal issues and lawyers to consumers of legal services. We will also develop a programme of engagement with stakeholder groups to help them understand the standards we expect. For example, we wish to work with those groups who represent BAME consumers to increase understanding of what good advocacy looks like and how to report concerns to us when practitioners fall short. This is important because research4 suggests BAME users are less satisfied with both the service they receive and the outcome of their matter than White British users.
  7. In addition, we also propose to publish aggregated and anonymised data on advocacy reports we receive. We believe this information will help solicitors and firms. It will help drive up standards of service by providing information that can be used to improve service delivery and maintain standards. This data will also help us make sure that any resources we provide are focused on those issues where solicitors may need additional support.

Question 6

Would you find it helpful to have access to a suite of resources aimed at supporting practitioners to meet high advocacy standards?

Question 7

Are there particular topics you would like to see included in our advocacy resources?

Supporting reports about advocacy standards

Background

  1. We recognise that there is a balance to be struck; we need to support solicitors and firms to meet the high standards needed for safe practice and take robust and proportionate regulatory action where standards are not met. We have set out in our new enforcement strategy the action we will take where an individual or firm we regulate falls short.
  2. Good information about the standard of solicitors’ practice is fundamental to the effectiveness of our regulation. Without it, it is difficult for us to identify solicitors and firms who are falling short of the standards we expect and who may need our support and attention. It helps us to understand the nature and scale of issues and whether concerns relate only to an individual or firm or represent a wider problem.

Our approach and proposal

  1. We want to support appropriate reporting. This will help us better understand the extent and nature of concerns about solicitors’ competence to conduct advocacy. It also enables us to take targeted action where appropriate. But we know that many stakeholders, for example, the judiciary and the public, do not raise concerns with us when they witness poor advocacy.
    Our research shows the following views amongst the judiciary Research about perceptions and experiences of other stakeholders shows the following
    A lack of awareness and clarity about how and where to make a report Consumers want information on our website, about what to do when there is a problem with a solicitor, to be easier to find
    Unwillingness to raise a concern about a solicitor as the origin of the report is easily identifiable (particularly relevant in small court areas) Consumers often express or report dissatisfaction to a third party. For instance, a YouGov 2012 survey estimated six out of ten complainants went straight to the Legal Ombudsman without making a complaint to their solicitor
    A failure to meet standards is often dealt with at the time or after the event Certain groups of consumers are less likely to raise concerns if they feel they have a problem. For instance, the Legal Services Consumer Panel’s (LSCP) tracker survey showed women are less likely than men to raise a concern.
    Perception that making a report will result in no action or inappropriately strong disciplinary action Despite an obligation to report misconduct there is limited reporting from solicitors about poor advocacy standards. An unwillingness to report may be a contributory factor.
    A lack of clarity about when poor standards becomes a regulatory matter  
    Unwillingness to make a report because it may not be known if client instructions were to blame for apparent failure to meet standards
    Our reporting forms are difficult to find and complete
  2. We have identified a range of measures we believe will help address these barriers.

Simpler reporting

  1. As part of our ongoing drive to improve the way we work; we are looking at improving the processes by which stakeholders raise concerns with us. For example, can we make our online reporting form simpler to use and easier to find? Can we do more to raise awareness of reporting through Legal Choices? We have already developed a leaflet with the Legal Ombudsman (LeO) for front line organisations and charities that explains when concerns should be raised with LeO and when with us. We will continue to promote this material.

Working with the judiciary

  1. Judges and court staff are uniquely placed to recognise whether the standard of advocacy provided by solicitors falls short of what we expect.
  2. We want to encourage judges to raise concerns with us where they see advocacy that falls short of the necessary standard. We will:
    1. make sure that the standards we expect in our Statement of Solicitor Competence and HRA standards are clear to judges
    2. raise awareness with judicial bodies about how they can make a report to us where they have concerns about the standard of advocacy of a solicitor who appears before them
    3. work with judicial bodies to develop training material that explains to judges and court staff how and what to report to us. This could include:
      1. how to make a report to us
      2. what we do when a report is made to us
      3. what issues we consider to be serious
      4. what factors we consider when determining appropriate regulatory action.

Reminding solicitors and firms of their regulatory responsibilities

  1. We recently clarified our position on solicitors’ reporting obligations. Solicitors and firms are required to report to us concerns which require investigation and this includes alleged or suspected misconduct. We will work with solicitors and firms to remind them of this responsibility in the context of criminal and civil advocacy.
  2. As well as enabling us to take targeted action when solicitors fall short of the standards we set, this information will help us to develop a much richer picture of possible issues with the standard of criminal and civil solicitor advocates across the sector.

Working with wider stakeholders and consumers and consumer groups

  1. Many consumers and other stakeholders may find it difficult to identify whether a solicitor has met the standards we require. We propose to engage with stakeholders, consumers and consumer representative groups to help explain how they can make a report to us.

Question 8

Do you agree with these proposals? Do you have other suggestions about how we might improve our reporting processes?

Consultation questions in full

  1. Do you agree with our proposal not to change existing practice rights, and to rely on the obligation on solicitors not to undertake witness handling where they are not competent to do so?
  2. Do you have any comments on our revised HRA standards?
  3. Do you agree that we should introduce a single assessment organisation for the HRA qualification?
  4. Do you agree with our proposal that the HRA assessment can only be attempted by admitted solicitors?
  5. Do you agree that we should impose a new youth courts requirement that solicitors practising in the youth courts must hold the criminal HRA qualification where they are acting as an advocate in any case which would go to the crown court if it involved an adult?
  6. Would you find it helpful to have access to a suite of resources aimed at supporting practitioners meet high advocacy standards?
  7. Are there particular topics you would like to see included in our advocacy resources?
  8. Do you agree with our proposals to support reporting? Do you have other suggestions about how we might improve our reporting processes?
  9. Do you have any further information to help inform our impact assessment?

How to respond

Questionnaire

Our online consultation questionnaire is a convenient, flexible way to respond. You can save a partial response and complete it later. You can download a copy of your response before you submit it.

Reasonable adjustment requests and questions

We offer reasonable adjustments. Read our policy to find out more.

Contact us if you need to respond to this consultation using a different format or if you have any questions about the consultation.

Publishing responses

We will publish and attribute your response unless you request otherwise.

  1. The Quality Assurance Scheme for Advocates was a joint scheme developed by the Bar Standards Board, the Solicitors Regulation Authority and CILEX Regulation. The Scheme was designed to regulate the quality of all advocates appearing in the criminal courts in England and Wales, whether they were barristers, solicitors, or legal executives.
  2. The patronising disposition of unaccountable power’ A report to ensure the pain and suffering of the Hillsborough families is not repeated, 1 November 2017, The Right Reverend James Jones KBE.
  3. Report of the Independent Review of Deaths and Serious Incidents in Police Custody, Rt. Hon. Dame Elish Angiolini DBE QC, January 2017.
  4. Tracker Survey 2016, Briefing note: experiences of Black and Minority Ethnic groups in legal services, Legal Services Consumer Panel, November 2016.

Downloadable document(s)