If it ain't broke

In January 2009 the Solicitors' Regulation Authority issued a consultation paper on solicitor advocacy. This clearly recommends that solicitor advocates undertake mandatory re-accreditation every five years. However, the SRA's proposals are misconceived.

The consultation makes it clear that: 'The SRA Board favours an approach based on mandatory re-accreditation of all holders of the qualification every five years.'

Nevertheless, three options are canvassed as follows: Option 1: Obligatory re-accreditation every five years; Option 2: Mandatory re-accreditation targeted at 'certain areas of weakness'; and Option 3: No re-accreditation at all.

Misconceptions

It is obvious that the SRA favours option 1, though the rationale behind this is by no means clear. A statement that ''¦ there has been a perception that the quality of advocacy'¦ is not as good as that of their barrister counterparts', is immediately followed by a surprising admission that 'there is no empirical evidence to support this' (consultation, page 4, para.5).

Nonetheless, the SRA maintains that blanket mandatory re-accreditation will 'enhance the reputation of solicitor advocates' (consultation, page 5, para.2), yet it offers no explanation to support this proposition.

Surprisingly, the SRA does not appear to have conducted a comprehensive Equality and Diversity Impact Assessment in relation to these options. Instead, consultees are merely invited to answer the question: 'Do you think there are any equality and diversity implications with all or any of these options?' (consultation, page 8, para.1).

The Solicitors' Association of Higher Court Advocates (SAHCA) believes this is likely to devalue and 'flaw' the consultation process.

SAHCA favours option 3 on the grounds that, in the absence of any evidence to the contrary, any scheme of re-accreditation is both unjustified and unnecessary.

Accreditation and training schemes for solicitor advocates already exist. In addition to those conducted by SAHCA, the CPS is developing its own system of training and accreditation and it is likely that CPS advocates would not be governed by any SRA scheme. The Legal Services Commission and the Ministry of Justice are jointly piloting a prospective Quality Assurance for Advocates (QAA) scheme which is likely to govern 'publicly funded' advocacy in the criminal courts. Thus these two schemes alone are likely to address any difficulties which could exist in the criminal jurisdiction.

In the light of these schemes, still in their infancy, the SRA's consultation is premature.

Disagreement

SAHCA disagrees with options 1 and 2 on a number of grounds.

First, options 1 and 2 do not address any identified problems. SAHCA contests the SRA's proposal on the grounds that this singularly fails to address and focus on any difficulties because these simply have not been identified.

Secondly, any skills attrition seemingly identified by the SRA is negligible. The SRA claims that such a system would ensure that solicitor advocates, who have perhaps not practiced in court for an extended period of time, might refresh their skills rather than lose them. This is based on the assumption, expressed as 'literature in other fields' (what does this mean?) that such skills devalue over time if undeveloped. Reference is made to a study into American medical surgical malpractice. But is the medical model really applicable to the practice of advocacy?

Thirdly, the scheme will be costly and will discriminate, for example, against BMEs and women returning from maternity or extended leave. The costs of any such scheme would be 'prohibitively expensive for solicitor advocates who come within the category black, minority ethnic (BME)'. Without a doubt this will adversely affect the career aspirations of BME solicitor advocates. Much in the same way, women returning from maternity leave would also suffer disproportionately. Eventually solicitor advocates would 'mainly be white, middle-aged males from large firms who can afford the fees and the time away from their practice'.

Fourthly, a re-accreditation scheme will not bolster client confidence. Far from 'providing the public and clients with confidence in the standard of solicitor higher courts advocates' (consultation, page 2, para.2), having to be re-accredited every five years would present the profession as unstable. Any 'client confidence' in solicitor advocates would hardly be sustained by constant re-accreditation, as the SRA implies.

Finally, as there is no mandatory re-accreditation for barristers, the SAHCA feels that the scheme is discriminatory in favour of the Bar and against solicitor advocates.

Worthless evidence

Ultimately the SRA's proposals are based on anecdotal evidence, which is worthless. The SRA's failure to carry out an Equality and Diversity Impact Assessment is arguably unlawful and potentially misleading. As a result, this consultation can perhaps be described as yet another classic example of unnecessary interference, i.e. 'nisi infractus, noli reficere'.