Standards for solicitor higher courts advocates and outline proposals for a new accreditation scheme

Consultation questionnaire form

This form is designed to be completed electronically—in MS Word—not as a printed form. You must save it locally before and after completing it.

Question 1

Do you consider the regulatory approach suggested in paragraph 12 of the consultation paper sufficient to protect the public interest and ensure the standard of advocacy in the higher courts?

Yes

No

Please explain and highlight any other measures you think the SRA should consider.

Yes, we do consider that the proposals are sufficient to protect the public interest.
We welcome the SRA's proposal that all solicitors should have rights of audience in all courts.
We would suggest that the SRA should consider whether the training received by prospective solicitors at the academic stage in relation to advocacy should be brought more into line with the professional qualification training requirements of barristers. There is in principle no reason why, if the aim is that both sectors of the profession have equal audience rights and to create a "level playing field", barristers' training should be any different in relation to advocacy, though we recognise that the overall training received by solicitors covers a wider area.

May 2008 Page 1 of 11 www.sra.org.uk

Question 2

Do the standards adequately cover the knowledge and skills that should be expected of a solicitor advocating in the higher courts?

Yes

No

Please explain with particular reference to any gaps in knowledge and skills and how these can be best addressed.

In our view the proposed standards do adequately cover the knowledge and skills that should be expected of a solicitor advocating in the higher Courts. Indeed, in some instances they exceed them. For example, in our experience it is not always the case that barristers have any detailed understanding of the implications of costs orders or the practicalities of disclosure.
The overall objective of the proposals ought to be consistent with achieving equality of opportunity and rights as between the two branches of the profession.

Question 3

Do you think that the standards are set at the appropriate level of a competent solicitor higher courts advocate?

Yes

No

Please outline your reasons.

The proposed standards are if anything set at a rather higher level than might be necessary. Again, they seem to require rather more than might be required of someone qualifying as a barrister.
The suggested standards do also entail many qualities which are necessary for a solicitor to have even if he is not advocating; they go beyond what strictly is required in relation to advocacy skills (e.g. requiring compliance with pre-action protocols and interviewing witnesses).

Question 4

Do the standards as drafted achieve the desired aims set out at paragraph 16 of the consultation paper?

Yes

No

Please outline your reasons.

Question 5

Are the performance indicators appended to the standards (see Annex 1 of the consultation paper) sufficient explanation of the required competence?

Yes

No

Please outline your reasons with particular reference to any additional indicators you would include or what amendments you would make.

We should add that we are doubtful as to the value of an accreditation scheme for advocacy. The SRA comments, rightly in our view, that the existing system of qualification is unnecessarily complex and onerous, and represents an unwarranted restrictive practice. In these circumstances, introducing a voluntary scheme that appears to be very similar to the existing scheme requires a strong justification. For example, is there any evidence that the existing accreditation schemes (such as that for civil and commercial mediation) benefit solicitors and their clients and, if so, that similar or other benefits would result from an advocacy accreditation scheme?
Our responses to the remaining questions assume that, notwithstanding our reservations, an accreditation scheme for advocacy is to be introduced. If a scheme were to be introduced, it would, of course, also be necessary to include transitional arrangements for those who have, for example, already passed the two assessments required on the existing development route but have not yet completed their period of mentoring.

Question 6

Is the proposed assessment process adequate to establish the competence of the applicant?

Yes

No

Please outline your reasons and make any alternative suggestions.

In principle, the process described appears more than adequate, but it is difficult to make a fully fledged judgement on its effectiveness without having more information.
Of particular concern would be to know:
(a) who and/or of what nature will be the independent organisations approved to administer the assessment process?
(b) will law firms, for example, be approved for the purpose?
(c) how will the assessment be carried out?
(d) apart from the mock trials and client interviews mentioned on page 9 of the Paper, what will be the nature of the content of the examinations referred to?
The paper is silent on these details which will obviously be an important aspect of the new regime and of relevance to its success.

Question 7

Should holders of the higher courts accreditation be revalidated every five years?

Yes

No

Please outline your reasons.

We do not understand why accreditation should be subject to a re-qualification requirement after five years, any more than it should in relation to barristers (or those holding the rank of Queen's Counsel) after a similar period, even those who rarely advocate because the nature of their work is mainly advisory. Our answer to this question is therefore "No".
In any event, and as we understand it, it is envisaged that the "test" for continuing to hold an accreditation under the new scheme should essentially focus on a demonstration that the individual has kept pace with developments in law and practice. That being so, we do not see why the need for any assurance that the individual continues to merit the accreditation cannot be met by the continuing professional development programme, which has the benefit of already being well established, has now been in force for some time, and which is, of course, common to barristers.

Question 8

If you answered “yes” to Question 7 above, please provide us with any views you may have on the proposed process.

Please see our answer to Question 7 in relation to CPD points.

Question 9

Should solicitors holding a higher courts qualification under the current regulations be passported onto the new scheme?

Yes

No

Question 10

Should passported advocates be required to complete the revalidation process in due course?

Yes

No

Please outline your reasons.

If accreditation under the current regime merits automatic accreditation under the new one, we do not understand why that accreditation should be withdrawn after five years, any more than it should be withdrawn from barristers after a similar period (again, even those who rarely advocate because the nature of their work is mainly advisory). Our answer to this question is therefore "No".
If there is to be a revalidation process in relation to those who have been "passported" on to the new scheme from the old, then the same point applies as is made in relation to revalidation generally in answer to Question 7: we do not see why the need for assurance as to continuing awareness of developments in law and practice cannot be met by the acquisition of CPD points.

Question 11

Do you consider that the proposed regulatory approach, competence standards, and scope and structure of the new accreditation scheme have potential positive or adverse impacts in the following areas?

For each equality strand, please place a check in one of the three columns to indicate your answer.

Equality strand

/

No impact

/

Positive impact

/

Negative impact

Age
Gender
Race
Disability
Sexual orientation
Religion or belief

If you answered “negative impact” or “positive impact” above, please indicate what you consider the impacts to be and outline your reasons.

Note in realtion to Question 12 below:
Q.12 is not applicable to our repsonse, which is a response filed on behalf of the City of London Law Society, and not in respect of a particular individual.

Question 12

Do you hold a higher courts qualification awarded under the current or previous Regulations?

Yes

No

If you answered “yes”, which qualification do you hold?

All proceedings

Criminal proceedings

Civil proceedings

Thank you for completing the Consultation questionnaire form.

Please save a copy of the completed form.

Please return it, along with your completed About you form, as an email attachment to , by 25 July 2008.

Alternatively, print the completed form and submit it by post, along with a printed copy of your About you form, to

Development and Information Team Development and Information Team

Education and Training Unit Education and Training Unit

Solicitors Regulation Authority Solicitors Regulation Authority

Ipsley Court or DX 19114

Redditch Redditch

Worcs

B89 0TD

May 2008 Page 1 of 11 www.sra.org.uk