Moses and the 161 Commandments

Moses LJs has given another speech attacking the QASA approach to assessing advocacy skills.  It is a cracking read (though I believe flawed, see below).  He appears to engaging in a full frontal assault on the approach of the Bar Standards Board and – knowingly or not – on the lead judge (Thomas LJ) involved in the process.  Both have put enormous store in the merits of judicial evaluation and turned a rather wooden ear to the concerns about it.

It is a cracking read, and many of his points hit home: the proponents of judicial evaluation were warned when Cardiff Law School did research on the initial QASA pilot (disclosure: I was a member of the team) that there were significant judicial hostility to it; that various factors would militate against it being a genuine measure of quality; that there was a risk of knock-on effects on appeals; and so on.  Those warnings were not taken seriously. Similarly problems with criteria developed for the pilot were rather brushed aside.

Indeed, the newer versions of the criteria have in some respects gotten worse.  Moses LJ alights on a number where the criteria appear to have been developed by someone with a certain poetic affection for the advocates skill rather than the rather more prosaic and difficult task of developing objective criteria that can be reliably used in practice.  It’s a rather depressing comment on joint working between the professions although I rather suspect that the working has not always been that joint: the SRA have worked hard to get in something that they want (assessment centres) and the Bar’s representatives/regulators have laboured hard to ensure a pivotal role for judicial evaluation.  Someone in there got occasionally romantic in the drafting of the criteria (how robustly have they been tested, one wonders, to see if they can be consistently applied?).  There is a significant risk, especially to the credibility of proponents of the judicial evaluation  approach, which Moses LJs speech rather underlines: the judges might prove rather difficult to entice into meaningful participation.

Moses LJs position is not without flaws of course.  He says judges should be involved in identifying the excellent and the incompetent but not in grading the average.  Well, that may be a sensible prioritising of judicial intervention and it might genuinely be easier for judges to identify the extremes of the quality spectrum but it may also raise concerns about capriciousness given the history of complaints made (fairly or unfairly) against solicitor advocates.  He is saying: judicial evaluation compromises independence if done regularly but not if done occasionally when judges feel the advocate is incompetent or merits promotion.  These are of course precisely the times at which assessment is most likely to impact on behaviour and so compromise independence.  His comments about “oleaginous” opponents seeking Silk or a Recordership rather underline that contention.  If he is right, judicial involvement appears to compromise independence under both approaches.  Conversely, it could be argued, if judicial evaluation became routine then advocates might simply get used to it and ignore it.  The arguments on that are not dissimilar to arguments about TVs in court, though persuading judges to do it and paying for the time to do it might prove a rather futile and/or expensive approach.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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4 Responses to Moses and the 161 Commandments

  1. Kris says:

    Where is this “history of complaints” re solicitor advocates?

    Judge Gledhill famously made one – but then retracted.

    Any others?

    Thomas LJ brought up an incident in Scotland.

    We’ve got as much control over the profession in Scotland as we do in Texas.

    So if you could produce a link to these supposed complaints, I know I’d be grateful.

    • Richard Moorhead says:

      Thanks. I am not implying that there are lots or that they are well founded (there isn’t much evidence on it, so I think it appropriate to remain agnostic). I know of examples other than Gledhill J (a Sheffield Sol Advocate was very rudely treated by a judge in the Crown Court, some years ago, for example: I’d rather not get into naming them).

  2. Kris says:

    No, that’s not the point. Judges being “rude” to solicitor advocates is different to your earlier assertion that there is a “history” of complaints.

    QASA is based upon the premise that advocacy standards have slipped and that judicial assessment will adress this supposed deficiency.

    Nobody can show me any data supporting a slippage in standards. All anyone is able to produce is, “Wow. Judge Snoddongton-Twixt was rough with solicitor advocate Dull today”.

    Is that really a foundation upon which a new layer of regulation is to be built?

    One more time: Where are the complaints? I find it fascinating that not one of the QASA cheerleaders has trotted out a list of complaints lodged at the SRA or BSB regarding inadequate advocacy.

    Not one.

    In the absence of any data, we are all obliged to conclude that there is another agenda. Moses LJ recognised the elephant in the room and went on to note that not only will QASA not assist the junior bar in clawing back work from solicitor advocates – it will destroy the excellence it purports to address.

    • Richard Moorhead says:

      The rude comment about the sol was indeed a complaint about the sols competence.

      There is data on competency standards in the QASA pilot report though. V small sample size, but very worrying for both Bar and sols. I think one could also interpret the CPS recent ‘cull’ as evidence of their concern; but there may be other interpretations.

      Whether there is sufficient evidence or not is a fair point. But I think saying there is no evidence is stretching it.

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