Earlier this week the Legal Services Board finally approved the Quality Assurance Scheme for Advocates, the first phase of which will begin on 30 September 2013.

In a series of linked posts, we set out the pros and cons of QASA and examine its relationship to  PCT and LASPO. (Unfortunately, the regulatory framework of the English legal system is littered with acronyms and abbreviations. To make life easier, these have been set out in a glossary which you can refer to whilst reading.

What is QASA?

The Quality Assurance Scheme for Advocates (QASA) is a regulatory scheme designed to maintain professional standards of criminal advocacy among the three main sectors of the legal profession who provide it. These are, first and most obviously, barristers who practise in the criminal courts of England and Wales. Secondly, it covers solicitor advocates who appear in criminal cases. Thirdly, it covers chartered legal executives and associate prosecutors who undertake court work.

At present each of these three groups is separately regulated, as they will continue to be; but whereas previously their standards of advocacy were maintained separately by their own regulators, now there will be an element of consistency across all three bodies.

Who devised the QASA scheme?

The QASA scheme was developed by the Joint Advocacy Group (JAG), which comprises representatives from the Bar Standards Board (BSB), the Solicitors’ Regulation Authority (SRA) and ILEX Professional Standards (IPS). Under the Legal Services Act 2007 (LSA 2007) these regulators are responsible for setting and maintaining standards.

Why is QASA needed?

Each of the regulators is committed to the implementation of a single quality assurance scheme which applies to all advocates and requires them to be assessed against a common set of standards. This is said to be necessary because of changes in the way legal services are now provided and the way legal businesses are or will in future be structured. The extension of rights of audience to different categories of legal professional and the commercial pressures tending to erode the independence of the traditional self-employed barrister may now make it harder for litigants, witnesses and jurors to understand the roles and responsibilities of those variously appearing as advocates in court. Moreover the general public needs, say the regulators, to be reassured that advocates are not taking on work beyond their competence. QASA is intended to set their minds at rest.

How is quality to be assured?

The QASA scheme establishes a mechanism whereby each advocate, of whatever profession, should be assessed against a common set of standards and, based on that assessment, assigned to a level of competence appropriate to four different categories of criminal case. These are:

Level 1. All magistrates’ court work, including youth court work; appeals from there to the Crown Court; bail applications; committals for sentencing and certain preliminary hearings.

Level 2. First level Crown Court work, including offences triable either way, straightforward cases such as theft, assault, burglary, lesser drug and violence offences, minor sexual offences and non-fatal traffic offences.

Level 3. More complex Crown Court cases such as serious fraud, drug and sexual offences, blackmail, aggravated burglary, fatal driving offences and child abuse.

Level 4. Most complex Crown Court cases, including murder, serious sexual offences, organised crime, terrorism and complex or high-value fraud.

Advocates will need to be accredited at one of the above levels and may progress up to the next level by demonstrating through assessment that they meet the required level. Even if they stay at the same level, they will need to be re-accredited every five years.

Competence of advocates will be assessed by way of assessed CPD (continuing professional development), by an assessment organisation, or by judicial evaluation. It is the last of these which has given rise to the most controversy. Essentially, it involves judges evaluating the performance of an advocate during a real trial. Nevertheless, judicial evaluation will be a compulsory means of assessment for advocates seeking accreditation at levels 2, 3 and 4, and the sole method of assessment at level 4.

Does QASA apply to Silks?

All criminal advocates, including QCs, need to be accredited under the QASA scheme. However, the JAG proposes that advocates who have recently taken silk (ie since 2010) will have been subject to sufficiently rigorous assessment already not to need accreditation at the initial stage of QASA and a modified entry arrangement has been suggested. However, they will need to seek re-accreditation five years after they took silk.

It may seem strange that barristers still in practice more than three years after taking silk should require the quality of their advocacy to be assured for the benefit of public confidence in the legal system, but that is in essence what the scheme demands. In what way, one wonders, was the selection process by which they were accorded senior counsel status insufficiently rigorous? Or was it just insufficiently transparent?

What comes next?

In the next post, we will look at how QASA is expected to work in practice and the timetable for implementation, and in subsequent posts we will look at some of the issues aired during the consultation process, the myths dispelled (or confirmed) and some criticisms that have been made. As soon as it becomes available from the BSB, we will review the QASA Handbook. Watch this space.