The Consumers of Regulation

The Master of the Rolls has endorsed the idea that judges should be the ones to assess the quality of advocacy in criminal courts. There are some problems with this (though if judges participate fully, if assessment was on a random – rather than self-selecting- basis, and there was proper monitoring to deal with the (unsubstantiated but widely reported) suggestions that some judges are biased against certain advocates, most of the objections can be dealt with). There remains the problem that an advocate’s competence is not only demonstrated in court, but let’s leave that point for now.

The idea of ‘consumers’ leads me to an interesting and, perhaps somewhat left-field, place. The LSB Chair, David Edmonds, has indicated his view that there should be a single regulator for advocacy (a sensible idea) and that it should be the Bar Standards Board. I wonder, somewhat mischievously, if the Board are thinking creatively enough about this. Maybe they should think again about who is best placed to regulate who. Let’s focus on advocacy and litigation. The MR says, judges are the ultimate consumers of advocacy. That’s stretching the point slightly: the public is the ultimate consumer, but the judiciary are the closest proxy. Judges are not, however, professional regulators and so the suggestion is that the BSB should continue in that role. Before that is agreed, I am tempted to ask who is the next best proxy and could they act as regulators? At the moment, in relation to higher rights and given the Bar’s (still) dominant position there, it is solicitors who are the next closest to being ‘consumers’ of advocacy. That will break down if more solicitors become higher court advocates, but at the moment they are in a better position to speak as consumers of advocacy than the Bar are and they could regulate it. The reverse is true of litigation: amongst the professional regulators the Bar are (currently) the closest to consumers of litigation (and I know very well that they judge the quality of their instructing solicitors with insight). Maybe the professions should regulate each other not themselves?

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