"(1) Independence - of the scheme and assessment process from those being assessed or their professional bodies; (2) Consistency - one scheme (with the possibility of multiple providers delivering it or parts of it); (3) Differentiation - multiple levels of assessment from entry level to the most senior level; (4) Tailored assessment - according to area of law and level; (5) Compulsory participation - any advocate wishing to practise in an area of work covered by the scheme would need at least the minimum level of accreditation for that area of work, but with clients choosing above that level the relevant level of advocate that suits their case, budget and personal preference subject only to limited restriction in place to protect the interests of justice; (6) Limited exceptions - passporting and exemption only where this is demonstrably in the consumer interest and supported by proper evidence; (7) Periodic reaccreditation."
"Judges who evaluate must eliminate those who are not fit for purpose. That would include incompetent barristers, of course it would. I greatly fear that the evaluation system will not go far enough, and will amount to toothless grumbling about bad advocacy, and nothing more"
"Please provide reasons for your evaluation, with reference to the specific Performance Indicators, particularly if you have selected either "
"Assessment of the application 15. Having considered the application and accompanying material, other information provided by the approved regulators during the application process, and other information the Board considered relevant to the application, the Board has decided to grant this application. In reaching its decision, the Board has taken the following into account. The assessment process 16. Under Schedule 4 paragraph 25(1) to the Act the Board can consider information supplied by the applicant and any other information it considers relevant to the application. The Board assessed the information contained in the application, conducted a review of the history and development of the Scheme and considered unsolicited representations made subsequent to the submission of the application. 17. While there is no formal public consultation requirement in the Board's assessment of applications in the initial decision period, the Board has considered the issues raised in the unsolicited correspondence it received after the application was made to the extent they were relevant to the decision. 18. In conducting an assessment of the application the Board wanted to better understand the problems the Scheme was trying to address and to assure itself that the regulatory arrangements proposed by the applicants were necessary, targeted and proportionate. 19. In the decision making process, the Board sought clarification from the applicants on a range of issues. These were mainly about how the Scheme will work in practice; consistency between the proposed rules of each applicant; and drafting points within the Scheme Handbook and individual rules of the applicants. The applicants made minor adjustments to the Scheme Handbook and to their respective proposed regulatory arrangements as a result of the Board's questions. The Board has not included details about these more minor matters in this decision notice but the more significant issues are covered and the changes are included in the versions of the documents included in the annexes to this notice. 20. The Board considered whether there were sufficient grounds for it to consider refusing the application and therefore whether to issue a warning notice under Schedule 4, Paragraph 21(1)(b) to the Act. For the reasons set out in the assessment, the Board determined that there were not sufficient grounds on which to consider refusal. Additionally the Board did not consider, particularly in the context of the four consultations undertaken by JAG, that seeking further advice through the warning notice procedure would have provided new empirical evidence or further anecdotal evidence that would have added any further value to the Board's overall assessment. The Board's assessment of the rationale for the Scheme 21. In developing the Scheme, the approved regulators have had to consider their duty under the Act to have regard to the regulatory objectives and Better Regulation Principles. The Board considered whether the applicants have acted in a way which is compatible with those regulatory objectives and principles. 22. As with all applications from approved regulators for alterations to regulatory arrangements, it is for the approved regulators themselves to undertake the policy development and drafting of the specific arrangements. It is also their responsibility to provide in the application any relevant material that supports it, including relevant evidence highlighting the necessity for regulatory arrangements. This includes an explanation of why the applicant wishes to make the alteration in question and the provision of any explanatory material which the applicant considers might be needed for the Board's assessment of the application. 23. Building on the Board's existing knowledge from its oversight engagement, the Board wanted to re-assure itself that there was a risk that needed to be addressed through a regulatory response and that there was a firm rationale for the introduction of the particular Scheme proposed. It is not the role of the Board to repeat the applicant's analysis of the issue in its decision making process. However, the Board did undertake a review of the history and development of the Scheme as part of its assessment of the application. 24. Concerns have been expressed over a long period of time about standards of criminal advocacy. For example, following the publication of the Carter Report in 2006 there appeared to be a consensus that quality assurance of advocacy is important. There is a range of evidence that points towards a risk and in some places a pattern of advocacy not being at the required standard. These include some senior judicial comment, though not all of this highlighted an increasing problem of poor advocacy in criminal courts. A pilot of a quality assurance scheme for criminal advocates undertaken by Cardiff University found that a significant proportion of advocates failed at least one part of the assessment. This was a self selecting group of advocates but nonetheless provided an indicator. Her Majesty's Crown Prosecution Service Inspectorate has also highlighted problems of poor advocacy and that a quality assurance scheme can help improve quality. 25. The Board is of the view that poor advocacy risks having a detrimental impact on victims, witnesses, the accused and on public confidence in the rule of law and administration of justice, and hence on the regulatory objectives of protecting and promoting the public interest of and supporting the rule of law. It also took into account the potential for higher costs from poorer quality advocacy, in terms of immediate costs by extended trials and the need for defective decisions arising in whole or part from poor quality advocacy needing to be corrected at appeal. 26. The Board in making its decision has taken into account that there has been a broad range of opinions expressed about this matter including views opposing both the necessity of a scheme and the details of the particular Scheme proposed. Grounds for opposition have covered the evidence base, necessity, proportionality and targeting. Much of the disagreement about the extent of low standards of criminal advocacy and the risks that this poses stems from the lack of consistent and measurable evidence available under the current arrangements. The Board recognises that, without a quality assurance framework in place, it would be very difficult to find conclusive evidence of quality problems across criminal advocacy. It is important that those practising criminal advocacy are operating at least to a minimum imposed standard and that the risks associated with poor quality are addressed by means of a proportionate regulatory response. 27. The Board concluded that, while no single piece of evidence of systemically poor standards would suffice on its own to justify the Scheme, there is sufficient consistency of evidence and concern to warrant a scheme such as that proposed by the application. This is because the concerns and limited evidence suggest a real risk, and a pattern, of actual problems in standards across a wide range of criminal advocates and almost nothing by way of evidence that quality is consistent good enough. 28. The Board considers that the proposed Scheme has the potential to provide reliable and sustained evidence for approved regulators to measure and improve the quality of criminal advocacy over time. The Board further considers that it is important that where there is opportunity, through a proportionate and targeted mechanism of accreditation, for relevant approved regulators to measure and enhance the quality of criminal advocacy, they should do so. In that regard, the Board concludes that the Scheme is proportionate because it addresses the risk in a structured way that allows the Scheme to be adjusted on the basis of evidence gained from its actual interpretation. This is consistent with the Better Regulation Principles enabling a consistent, proportionate and targeted approach to regulation. 29. The Board is further assured by the commitment from the applicants to review the Scheme after two years. The Board understands from the application that this review will "provide a comprehensive analysis of the Scheme including the assessment of the performance of key processes"
"Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case. They may not make imputations of dishonesty unless they have been given the information to support them. They should not waste time on irrelevancies even if the client thinks that they are important."
"The lawyer must also remain independent of his or her own client if the lawyer is to enjoy the trust of third parties, or the court indeed. Without this independence from the client there can be no guarantee of the lawyer's work."
"Something of a myth about the meaning of the client's "instructions" has developed. As we have said, the client does not conduct the case. The advocate is not the client's mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor "instructs" him. In short, the advocate is bound to advance the defendant's case on the basis that what his client tells him is the truth, but save for well-established principles, like the personal responsibility of the defendant to enter his own plea, and to make his own decision whether to give evidence, and perhaps whether a witness who appears to be able to give relevant admissible evidence favourable to the defendant should or should not be called, the advocate, and the advocate alone remains responsible for the forensic decisions and strategy. That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court. In the trial process the advocate is subject to some elementary rules. They apply whether the advocate in question is a barrister or solicitor, and to the extent that the rules of professional conduct of either profession are not consistent, they should be made so. In the forensic process the decision and judgment of this court bind the professions, and if there is a difference, the rules must conform with the decisions of the court. By way of emphasis, in the course of any trial, like everyone else, the advocate is ultimately bound to abide by the rulings of the court. If a remedy is needed, the rulings are open to criticism in this court, and if they are wrong, their impact on the trial and the safety of any conviction can be fully examined. Although the judge is ultimately responsible for the conduct of the proceedings, the judge personally, and the administration of justice as a whole, are advantaged by the presence, assistance and professionalism of high quality advocates on both sides. Neither the judge nor the administration of justice is advantaged if the advocates are pusillanimous. Professional integrity, if nothing else, sometimes requires submissions to be made to the judge that he is mistaken, or even, as sometimes occurs, that he is departing from contemporary standards of fairness. When difficult submissions of this kind have to be made, the advocate is simultaneously performing his responsibilities to his client and to the administration of justice. The judge, too, must respect the reality that a very wide discretion is vested in the judgment of the advocate about how best to conduct the trial, recognising that different advocates will conduct their cases in different ways, and that the advocate will be party to confidential instructions from his client from which the judge must be excluded. In general terms, the administration of criminal justice is best served when the relationship between the judge and the advocates on all sides is marked by mutual respect, each of them fully attuned to their respective responsibilities. This indeed is at the heart of our forensic processes."
"It is therefore necessary to remove barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services as between Member States and to guarantee recipients and providers the legal certainty necessary for the exercise in practice of those two fundamental freedoms of the Treaty. Since the barriers in the internal market for services affect operators who wish to become established in other Member States as well as those who provide a service in another Member State without being established there, it is necessary to enable providers to develop their service activities within the internal market either by becoming established in a Member State or by making use of the free movement of services."
"(1) The provisions of this Part have effect in relation to the provision of a service in the United Kingdom, except as specified in paragraph (2). (2) The provisions of this Part do not have effect for the purposes of, or in connection with, the exercise of the freedom of the provider of a service who is established in another EEA state to provide the service in the United Kingdom from that state (see Part 4)."
"The concept of 'authorisation scheme' should cover, inter alia, the administrative procedures for granting authorisations, licences, approvals or concessions, and also the obligation, in order to be able to exercise the activity, to be registered as a member of the profession or entered in a register, roll or database, to be officially appointed to a body or to obtain a card attesting to membership of a particular profession."
"When Member States review their legislation to identify their existing authorisation schemes, the key element to look for is whether the legislation in question requires a decision from a competent authority, be it explicit or implicit, before the service provider can lawfully exercise the activity. The notion of authorisation scheme includes, for example, procedures by which a service provider needs to make a declaration to a competent authority and can only exercise the activity upon expiry of a certain time period if the competent authority has not reacted. It also includes cases in which declarations have to be made by the service provider, which then have to be acknowledged by the competent authority, insofar as this acknowledgement is necessary in order to commence the activity in question or for the latter to be lawful."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"[96] In view of its review of the case-law, the Court does not consider that the applicant's inclusion in the Performers List in England constituted a 'possession' for the purposes of art 1 of Protocol No. 1. In order for that Article to apply, it must be established that there was an underlying professional practice of a certain worth that had, in many respects, the nature of a private right and thus constituted an asset and therefore a 'possession' within the meaning of the first sentence of art 1..."
"Please provide reasons for your evaluation, with reference to the specific Performance Indicators, particularly if you have selected either "