It is over five years since a single, late, unconsulted, unevidenced sentence in Lord Carter’s report on legal aid recommended that there should be a quality assurance scheme for advocates. Since then, groups from the bar, Law Society, judiciary and the Legal Services Commission have been arguing about exactly what that should involve.

It is only since the Legal Services Board has taken an interest and established the Joint Advocacy Group (JAG), made up of the Solicitors Regulation Authority, Bar Standards Board and ILEX Professional Standards that significant movement has taken place. It now looks as though a scheme will come into effect in the next six months.

There still is not much more evidence about whether this scheme is objectively necessary. Anecdotally, the judiciary feels that standards are not what they were. Whether or not that has anything to do with the fact that legal aid rates have not increased overall since 2004 is, apparently, irrelevant. In any case, the LSB has opined that there must be a scheme, and nobody is going to publicly argue that something which is intended to improve advocacy standards is a bad thing.

The features of the proposed scheme are, broadly, as follows. There are to be four levels of advocacy: level 1 relates to most magistrates’ courts work; level 2 to most ordinary Crown court work (but including youth court work); levels 3 and 4 deal with more serious offences (level 4 being roughly equivalent to the sort of cases that require QCs).

Advocates will have to self-assess at a particular level and provide evidence that they have undertaken work at that level in the last 18 months. Alternatively, they can attend an assessment centre where it will be decided whether they have demonstrated the necessary skills. Whatever the route, if they are successful at getting accreditation at that level, for the next two trials they undertake at that level they will need to receive confirmation from judges that they have reached the appropriate standard.

Advocates wishing to move up a level will need to attend either an assessment centre or seek evaluation from judges that they have reached the right standard.

An obvious problem with this seems to be that the proposals will place a real tension on the relationship between judge and advocate. Advocates have to act fearlessly in the protection of their clients’ interests. Not every judge will necessarily respect this and it is easy to see how a tension might arise between an advocate’s duty to their client and their wish to advance a career by not offending a judge. Judicial assessment, though, is undoubtedly cheap (there being, apparently, no mechanism for charging for what many would regard as very expensive time) and this, presumably, is the reason why the bar is so keen on it.

Moreover, the judiciary, outstanding though it is in judging cases, has almost no experience of assessing quality of advocacy consistently. This is not an easy skill to obtain and, although apparently there is to be significant training of judges, it is not certain whether it will be possible to achieve this to a level that justifies career-making, or -breaking, decisions in the time available.

The small pilots that have so far taken place (admittedly, with little meaningful training) do not give confidence that this will be possible, and the onus must be on the judiciary to show that it can act with consistency to a very new set of standards. Apparently, it is confident that it can do so in the short time available.

These decisions have been taken and we have to wait and see what happens. However, in a number of areas there is scope for change to the initial proposals, and where it is absolutely essential for the profession that they take place. These concerns arise largely over the work that is covered by the different levels. There is a real danger that the requirements needed before advocates can undertake particular areas of work are so onerous that solicitors who are competent to undertake that work are prevented from doing so.

The first concern relates to the higher levels. There seems to be an assumption that all aspects of a trial require the same level of expertise. No one will seriously argue that conducting a full trial for rape, murder or serious fraud does not require a very high level of experience in dealing with complex material and with witnesses, and taking decisions on the conduct of a trial that have huge ramifications. It is right that advocates should be able to demonstrate that they have achieved the right level of skills in order to do so.

Even so, these requirements cannot sensibly apply to the advocates who simply do the sentencing hearings or the guilty pleas in such cases. A number of solicitors undertake these parts of a trial perfectly competently and for very good reasons – they have the confidence of the client and the original trial advocate is unavailable, for example.

It might well be that such advocates may not be competent to undertake the full trial but, until it is a professional requirement that the trial advocate undertakes every aspect of case, it cannot be right to insist that an advocate who simply wishes to undertake the simpler parts of the process should be prohibited from doing so, solely because they do not have the competence to conduct the full trial.

There are also details about the timelimits for demonstrating competence. Many advocates are highly competent but do not necessarily have the number of cases needed to demonstrate actual experience in the timelimits allowed. There need to be alternative arrangements or less restrictive time requirements to demonstrate competency. This is particularly important for those who for maternity or other reasons may not be able to meet all the requirements.

But it is in the magistrates’ courts (at level 1) that the proposals need most reconsideration. There is no requirement for judicial assessment here, but advocates must undertake assessed continuing professional development to maintain their rights every five years. This may seem to be an easily justifiable requirement, but it is highly likely that the vast majority of the profession who do not appear in the magistrates’ courts will lose their rights to do so. There has been no significant consultation about this and this is surely necessary.

There will, inevitably, be an effect on those who want to offer occasional pro bono services, or those who have a specific expertise which might involve a very occasional outing in the magistrates’ courts.

There is a more practical effect on those currently working there. Those doing youth court work will need to be at level 2. It is doubtful that those undertaking this work need the full range of Crown court advocacy skills required at this level, and the result may well be that a substantial number of solicitors find a major hurdle in the way of continuing to earn their living. There has been no consultation of those directly affected on this and no impact assessment.

The same applies to those solicitors who currently do guilty pleas in the Crown court in cases referred up from magistrates’ courts. These solicitors do not require the full range of Crown court skills to undertake this work and it is surely inappropriate to require them to gain them.

All of these points (and a number of others) can be resolved through relatively simple amendments to the scheme and the Law Society is taking these forward urgently with the SRA and, through it, the JAG. Failure to resolve them is going to have significant effects on the criminal justice system and on the viability of solicitors’ practices.

This is uncharted territory and the regulators need to ensure that the benefits that may arise from proper quality assurance are not negated by a smaller, less competitive market and a significant reduction in the number of competent advocates available to the public – particularly at a time when the fees and the attractions of criminal work to the profession are at an all-time low.

Mark Stobbs is director of legal policy at the Law Society