Joint Consultation by the ILEX Professional Standards (IPS), Solicitors Regulation Authority (SRA) and the Bar Standards Board on Advocacy Standards

Introduction

ILEX welcomes the opportunity to respond to the joint consultation by the Solicitors Regulation Authority (SRA) , ILEX Professional Standards (IPS) and the Bar Standards Board (BRB) on proposals for the development of a common set of advocacy standards applying to all advocates. The intention is to develop and quality assure an overarching standard for advocacy.

The quality of justice in the courts depends on the quality of advocates in court.  To this end, ILEX agrees in principle that all advocates, whichever profession they come from, should, when acting as advocates in court, be subject to a common set of high level advocacy standards that are rigorous and transparent.  The coming together of the IPS, The SRA and the BSB shows the commitment for the common advocacy standards to be profession led. Joint professional involvement leads to robust and effective standards that apply consistently to all advocates regardless of whatever profession they come from; this sort of collaboration invariably results in higher standards being achieved.

As observed by Lord Judge, the Lord Chief Justice, recently, of ‘’all the professional skills which may have an effect on the life of others, probably non is more personal and individual than the skills of the advocate’’.  Give the  same brief in a criminal trial to 10 advocates and ‘’there will be the different    ways of advancing the case’’.  However, whatever method is employed by the advocate to advance a case in court, there is a need for a common set of  advocacy standards that are applicable across the profession. At the moment, the route that a  particular advocate has taken will determine which competency   standards and continuing professional arrangements are applicable. The Crown Prosecution Service lays down its own standards, ILEX Professional Standards has its own framework, the accreditation of  Solicitors is for the  Solicitors Regulation Authority and the ability to practice as a Barrister is laid down by the Bar Standards Board.  There is indeed merit for a common  standard to apply across all the different professions as long as they are high level principles applicable to all  advocates.

Success as an advocate, however, should not wholly be dependant on the possession of a qualification in advocacy alone.   It needs to be recognised that not all those duly qualified can or will succeed in their chosen profession.   A common set of advocacy standards should endeavour to continue to encourage good advocates whilst at the same time identify those practitioners that tarnish the majority.  Consideration needs to be given to requiring more evidence from those advocates who, in the main, represent lay as apposed to professional clients.  The professional client will, most often, be better to judge the advocacy of representation and will determine whether to continue instruct such an advocate.   Subject to the above, ILEX answers the consultations questions as follows:

Executive Summary:

• The Proposed standards only obliquely refer to the high moral and ethical standards all advocates have to adhere to.  ILEX is of the view high moral and ethical standards should receive far greater prominence as these two important principles underpin the client/advocate relationship from the outset.
• The standards as proposed by the consultation paper appear slanted towards the Barrister or Solicitor perspective: not all would apply to Legal Executive criminal advocates.
• The proposed standards appear to strike the right balance in the sense that they are not too detailed or prescriptive but at the same time rigorous and transparent.
• It should be made clear that lower standards are not acceptable.

Question 1

How comprehensive are the proposed standards? Do they cover all the areas that you expect of a criminal advocate? Please set your rationale.

Save for the following comment below, Yes.

Proposed standard A.1 proposes a criminal advocate ‘‘only undertakes advocacy in a case in which they have knowledge, experience and skills required for that case’’.   No specific mention is made in the proposed standards of the requisite legal qualifications and training needed before undertaking advocacy.  It is right and, the public interest demands, that those seeking to become advocates undertake additional training, whether that is in professional law schools, or during practical training or by training by the professional bodies, to equip them with the skills of becoming a competent advocate.

Further, it should be made clear that no lower standards are acceptable. 

Question 2

Are there standards that are missing or should be removed?

The Proposed standards only obliquely refer to the high moral and ethical standards all advocates have to adhere to.  ILEX is of the view high moral and ethical standards should receive far greater prominence as these two important principles underpin the client/advocate relationship from the initial contact with the client, right to the climax of a case and beyond.

Advocates also owe a duty to the court. This needs to be highlighted.

Question 3

We have identified some equality benefits to putting in place common standards and assessing against them. Are there any positive benefits?  Are there any negative consequences for any group?  How further can we promote equality and diversity? How can we mitigate any negative consequences?

Equality, fairness and integrity are directly concerned with the court's constitutional role as the upholder of the rule of law.  It is only appropriate that advocates of the court lead by example.

To this end, the following principle should be added:

‘’Tackles structures, behaviours and attitudes that might contribute to, or reinforce, the perceived or real threat of inequality and discrimination’

In order to assess any positive or negative consequences, the joint group should carry out an equality impact assessment.

General Comments

The standards as proposed by the consultation paper appear slanted towards the barrister or solicitor perspective: not all would apply to legal executive criminal advocates. For example, the criterion laid down in C3 is not really applicable to Legal Executive Advocates as they will not normally be in charge of an advocacy team.