Introduction
Background to the application
Assumptions underlying the application
The panel's considerations
Scope of extended rights of audience : criminal proceedings
Scope of extended rights of audience : civil proceedings
Scope of extended rights of audience : family proceedings
Qualification scheme
Reliance on external expertise
The level of knowledge and experience required of ILEX
advocates
The advocacy skills course
Assessment of the advocacy skills course
Post-qualification regime
Code of conduct/professional regulation
Internal review
Conclusion
See background information
1. This Advice relates to the Institute of Legal Executives (ILEX) application to the Secretary of State dated June 2004 seeking both to redefine and to extend rights of audience available to ILEX members (the Application).
The Application seeks to:
(i) Retain but redefine rights of audience which may currently be conferred
by ILEX on its
Fellows
(ii) Extend current rights of audience in three areas:
- Civil Proceedings
- Family Proceedings
- Criminal Proceedings.
Details of ILEX's current rights and the extended rights sought under
this Application are set out at paragraphs 9 and 10 respectively of this
Advice.
2. The Application is made under section 29 of the Courts and Legal Services
Act 1990 (CLSA). In June 2004, the Secretary of State referred the proposals
of ILEX to the Panel for advice under section 18A(3)(b) of CLSA.
3. In considering and advising on the Application, the Panel has had regard
to the principle central to the policy of CLSA and the Access to Justice
Act 1999, namely the development of legal services in England and Wales
(and in particular the development of advocacy, litigation, conveyancing
and probate services) by making provision for new or better ways of providing
such services and a wider choice of persons providing them, while maintaining
the proper and efficient administration of justice.
4. The Panel has also taken account of the five principles of good regulation
identified by the Better Regulation Task Force (an independent group established
in 1997 to advise the government) against which the appropriateness and
effectiveness of any types of regulation should be tested, namely, transparency,
accountability, targeting, consistency and proportionality.
5. Rights of audience are determined by the provisions of section 27 CLSA
(as amended by the Access to Justice Act 1999) which provides that a person
shall have a right of audience, where:
(i) He has a right of audience before that court in relation to those proceedings
granted by the appropriate authorised body; and
(ii) That body's qualification regulations and rules of conduct have
been approved for the purposes of this section, in relation to … that
right.
6. ILEX is an authorised body within the meaning of section 29 CLSA, having
been so designated by the Legal Executives Order SI 1998/1077.
7. Where an authorised body alters any rights of audience or rights to conduct
litigation granted by it (including the grant of a new right) the qualification
regulations and rules of conduct relating to those altered rights must first
be approved by the Secretary of State before they shall have effect.
8. ILEX is the professional body which represents legal executives and trainee legal executives. By the Application it also seeks approval for amendments to its Rights of Audience Certification Rules, in relation both to qualification requirements and to the administrative arrangements for qualification.
9. Current Rights of Audience
ILEX can currently grant limited rights of audience to suitably qualified
Fellows, to appear
9.1 In open court in a County Court on matters which are within the normal
jurisdiction of a District Judge
9.2 In family and related proceedings in County Courts (as to which see
further paragraph 19 and Appendix B [Appendix A, B & C are available
from the Panel Secretariat, telephone 020 7210 8816] ) and Magistrates Courts
9.3 In Magistrates Courts in relation to all matters originating by complaint
or application, including applications under the licensing, betting and
gambling legislation
9.4 Before those Tribunals under the direct supervision of the Council on
Tribunals in which the Tribunal rules provide for non-discretionary rights
of audience being available to barristers and solicitors
9.5 Before Coroners Courts in respect of all matters determined by those
courts
10. Extended Rights of Audience
ILEX is seeking to redefine and extend the rights of audience which it is
able to grant to its Fellows. This would result in the granting of three
forms of certificate conferring rights of audience: the Civil Proceedings
Certificate, the Family Proceedings Certificate and the Criminal Proceedings
Certificate. The additional rights sought would extend the areas in which
ILEX advocates can operate, most notably to certain civil and family hearings
where the liberty of the subject is in question, and to various criminal
hearings.
The grant of rights under such certificates would permit suitably qualified
Fellows of ILEX to exercise rights of audience in the following categories
of proceedings:
10.1 Civil Proceedings Certificate
10.1.1 To appear in open court in the County Court in all actions except
family proceedings
10.1.2 To appear before Justices or a District Judge (Magistrates Court)
in the Magistrates Court in relation to all matters originating by complaint
or application, including applications under the licensing, betting and
gaming legislation
10.1.3 To appear before any tribunal under the supervision of the Council
on Tribunals where the tribunal provides for non-discretionary rights of
audience being available to barristers and solicitors
10.1.4 To appear before Coroners Courts in respect of all matters determined
by those Courts and to exercise rights of audience similar to those exercised
by solicitors and barristers.
10.2 Family Proceedings Certificate
10.2.1 To appear in Court (including in open court) in all County Court
family proceedings (as to which see further paragraph 19 below and Appendix
B [Appendix A, B & C are available from the Panel Secretariat, telephone
020 7210 8816]).
10.2.2 To appear before Justices or a District Judge (Magistrates Court)
in the Family Proceedings Courts
10.2.3 To appear before Coroners Courts in respect of all those matters
determined by those Courts, and to exercise rights of audience similar to
those exercised by solicitors and barristers.
10.3 Criminal Proceedings Certificate
10.3.1 To appear before Justices or a District Judge (Magistrates Court)
in all adult magistrates courts in relation to all matters within that court's
criminal jurisdiction
10.3.2 To appear before Justices or a District Judge (Magistrates Court)
in all Youth Courts in relation to all matters within that court's
criminal jurisdiction
10.3.3 To appear in the Crown Court or High Court before a judge in chambers
to conduct bail applications
10.3.4 To appear in the Crown Court on appeal from the Magistrates'
Court, the Youth Court or on committal of an adult for sentence or to be
dealt with, in any case where he/she, or any solicitor by whom he/she is
employed, or any other solicitor or Fellow in the same employment as her/him,
appeared on behalf of the defendant in the Magistrates Court or Youth Court;
10.3.5 To appear before Coroners Courts in respect of all those matters
determined by those Courts, and to exercise rights of audience similar to
those exercised by solicitors and barristers.
A table summarising the details of ILEX's existing and proposed rights
of audience, which has been prepared for the Panel by the DCA's Legal
Group, is set out in Appendix A of this Advice. With regard to family proceedings
in the County Court, this table should be read subject to paragraph 19 and
Appendix B. [Appendix A, B & C are available from the Panel Secretariat,
telephone 020 7210 8816.]
11. A number of assumptions underlie ILEX's application for extended rights. These are that:
11.1 Those members who achieve the standard established for a member of
ILEX to
become qualified in accordance with the regulations proposed in the Application
would have the education, training and experience needed to exercise such
rights of audience.
11.2 Those members who achieve the standard established in the proposed
qualification
scheme and qualify as advocates will in practice work under the general
supervision of their solicitor principal.
11.3 ILEX has in place rules of conduct which it is able to enforce against its members.
11.4 Those rules of conduct, which apply particularly to advocates, will
ensure that the
rights of audience which are granted will be exercised in accordance with
the proper and efficient administration of justice.
11.5 The application is part of ILEX's strategic aim of seeking new
professional
opportunities for its members. The Panel has noted that ILEX representatives
have publicly made it clear on a number of occasions that they are working
towards an objective of establishing executive litigators who can practise
in their own right i.e. outside the employment and without the supervision
of a solicitor.
12. An application for extended rights of audience was originally made
by ILEX in September 2002 but was subsequently withdrawn. When considering
this application the Panel set up a working group which invited and/or received
written representations from the Legal Services Commission, the Law Society,
the Criminal Bar Association and the Family Law Bar Association (passed
on by the Bar Council), and HM Council of Circuit Judges, as well as ILEX
itself. When considering ILEX's current application, the Panel set
up a new working group, consisting of five members, including members of
the former working group.
13. The Application states (at Part II Para 23)
'… This Application does not propose to extend ILEX's
power to grant rights of audience to Fellows other than those employed by
or working under the supervision of solicitors or other litigators currently
authorised under the Courts and Legal Services Act. ILEX has decided against
seeking an extension which would enable Legal Executive Advocates to practise
independently because it remains almost entirely the case that legal executives
train and are employed within the legal profession…. ILEX's
regulatory arrangements are not, at this stage, sufficiently developed to
enable thorough regulation of self-employed members seeking to exercise
rights of audience.…'
14. The Panel's advice is based on this remaining the position. Any
departure from this position which proposed to allow self-employed members
/ legal executive litigators to seek rights of audience would raise fundamental
issues as to whether or not ILEX had in place rules of conduct effective
to give adequate protection to consumers outside the protection of employment
under the supervision of a solicitor or other litigator authorised by the
CLSA and the regulatory umbrella thereby provided.
The Panel recommends that any change in the position stated in paragraph
13 above should result in a full re-examination of any grant and exercise
of rights of audience by ILEX and its Fellows.
15. In addition, whilst the Panel notes the reliance placed by ILEX on the
general point that ILEX advocates are subject to the supervision of their
employer/solicitors, such reliance does not address the position that, when
in court on his/her own, the quality of an advocate's performance
depends upon the quality of his/her training and an effective regime of
monitoring and supervision. This practical point has not been recognised
or addressed by ILEX in the Application.
16. Aspects of the Application which particularly concern the Panel are
as follows:
17.1 The Panel supports the Application in respect of the rights of audience
comprised within the proposed Criminal Proceedings Certificate (see paragraphs
10.3.1 to 10.3.5 above), subject to the comments that follow:
- We support category 10.3.3 (applications before a judge in chambers) given
that it is limited to bail applications. We are not persuaded that more
complex proceedings before a Crown Court judge in chambers would have been
appropriate for inclusion
- In respect of category 10.3.4 (appeals and committals for sentence to
the Crown Court), the Panel reads the reference to "adult" as
excluding from the application an appearance on behalf of a child or young
person in the Crown Court. Whilst the Crown Court has power to impose a
custodial sentence in excess of 2 years on a young offender for 'grave
crimes' only upon a conviction or indictment (s.91(1)) Powers of Criminal
Courts (Sentencing) Act 2000, the Panel understands that in practice the
Youth Court will commit the Defendant to the Crown Court for trial if s.91
applies to the offence and the Youth Court thinks that it ought to be possible
for the Defendant, if convicted, to be sentenced under s.91.
The Panel does not feel able to support the inclusion within the proposed Criminal Proceedings Certificate of any proceedings in which a young offender may be subject to a possible custodial sentence greater than two years.
17.2 The Panel's observations to the effect that we support the inclusion within the proposed Criminal Proceedings Certificate of category 10.3.1 in respect of Magistrates Court proceedings, take into account the proposed extension in magistrates' custodial sentencing powers (in essence, from 6 months to 12 months) contained in Section 154 of the Criminal Justice Act 2003.
17.3 The Panel's observations to the effect that it would have felt able to support the inclusion within the proposed Criminal Proceedings Certificate of category 10.3.2 in respect of Youth Court proceedings are based on the current jurisdiction of that Court. If the same were to be materially extended - for example by the introduction of the reform recommended by the Auld Committee in its report 'Review of the Criminal Courts in England and Wales', published in October 2001 (see paragraph 10 of the Summary and Recommendations) whereby cases of 'grave crimes' within section 91, Powers of Criminal Courts (Sentencing) Act 2000 brought against young persons could be tried by a Youth Court including a Crown Court judge, with the power to impose a custodial sentence substantially greater than 2 years - the Panel would recommend that the scope of any grant of rights of audience in the Youth Court by ILEX to its Fellows should be restricted and should not be extended to cover such hearings without re-examination of any proposals in this respect.
17.4 The Panel believes that the rights of audience within the proposed
Criminal Proceedings Certificate represent a logical and coherent package,
going a long way to meet the criteria of clarity and simplicity for the
scope of rights of audience which are mentioned in the Application in the
context of the other two proposed certificates at Part II, paragraph 1.
The principal extension to existing rights of audience covered by this certificate is in respect of Open Court proceedings in the County Court (see Appendix A [Appendix A, B & C are available from the Panel Secretariat, telephone 020 7210 8816]). The Panel has concerns about the rights of audience sought in respect of committal proceedings (as to which see paragraph 19 below). The Panel does not consider that it is appropriate to consider rights of audience on the basis that committals in civil cases are "quite rare".
With the exception of committal proceedings, the Panel supports this aspect
of the Application.
19.1 In pursuance of its stated aim to simplify existing rights which may be granted in Civil and Family Proceedings, including those where the liberty of the subject is involved, ILEX suggests that suitably qualified ILEX Advocates should be able to appear in such proceedings so as (i) to enhance the value of extended rights for its members and (ii) to enable practitioners to deal with all aspects of their caseload without having to bring in an alternative lawyer. In support of this aspect of the application, ILEX submit that sentences imposed in committal proceedings are rarely of or near the maximum, while committals in civil cases are rare.
19.2 So far as family proceedings are concerned, the present position with regard to rights of audience appears somewhat complicated and obscure, and to have developed on an unsatisfactory basis, for the reasons set out in Appendix B hereto [Appendix A, B & C are available from the Panel Secretariat, telephone 020 7210 8816]. Given these complications, and given also that one of ILEX's stated purposes in making the Application is to redefine the rights of audience which it may award, the Panel has come to the view that it should provide advice primarily dealing with its view as to the merits of the case for ILEX being entitled to grant rights of audience in respect of particular categories of family proceedings.
19.3 As the Application acknowledges in Part II, paragraph 9, the proposals represent a significant development in the rights of audience of ILEX members in the County Court, in particular in committal proceedings where custodial sentences of up to two years imprisonment can be imposed (though such rights may currently exist in relation to family proceedings, for the somewhat unsatisfactory reasons set out in Appendix B [Appendix A, B & C are available from the Panel Secretariat, telephone 020 7210 8816]. Such proceedings can be particularly sensitive if they arise within family proceedings. The Panel considers it neither realistic nor appropriate to determine rights of audience by reference to whether sentences to be imposed are "rarely of or near the maximum". The Panel notes that ad hoc representation by an ILEX advocate, where considered appropriate in light of all the circumstances, is already permissible as a matter of the judge's discretion.
19.4 The Panel considers that cases of this nature, which are often formal
and relatively
technical in nature, and which involve the liberty of the subject to a significant
extent, are of such weight and importance as to render them inappropriate
to be undertaken by advocates whose training and experience is limited to
that prescribed by the ILEX Qualification Scheme, save pursuant to ad hoc
exercise of the judicial discretion above referred to in individual cases.
19.5 The Panel has particular concerns in respect of representation of parties
in Care cases. By way of a preliminary, it appears to the Panel that ILEX
Fellows currently enjoy rights of audience in such hearings in a sense by
default, for the reasons given in Appendix B [Appendix A, B & C are
available from the Panel Secretariat, telephone 020 7210 8816]. Having said
that, the basis of the Panel's concern is that such cases involve
the removal or placement of children and are very draining and emotional
for many of the participants. They are frequently lengthy (up to 15 days)
and may involve various experts such as Psychologists/Risk Assessors. They
also frequently involve matters which in the Crown Court jurisdiction would
be treated as High Court judge work viz. serious sexual abuse, child cruelty,
manslaughter and even murder. Finally they give rise to as many ECHR points
as criminal trials. The Panel again notes that, where appropriate, the Court
can hear a suitably qualified ILEX advocate as a matter of the judge's
discretion.
19.6 The Panel is concerned that Care cases are of such weight and importance
as to render many of them inappropriate to be undertaken by advocates whose
training and experience is limited to that prescribed by the ILEX Qualification
Scheme. The Panel express the hope that the Secretary of State will give
early consideration to the making of a Statutory Instrument defining 'reserved
family proceedings' for the purposes of section 27 CLSA.
The Panel is unable to support the Application in its present form in respect
of the rights of audience sought in relation to Family Proceedings Certificates
in respect of committal proceedings and Care cases.
20.1 The proposed qualification scheme comprises the following stages:
20.1.1 Grant of a Certificate of Eligibility by the Advocacy
Rights Committee
20.1.2 Successful completion of an Advocacy Skills Course
20.1.3 Grant of a Rights of Audience Certificate in respect
of civil, family or criminal proceedings
20.1.4 Annual renewal of each Rights of Audience Certificate.
20.2 Under the proposed qualification scheme, Fellows or qualified members of ILEX wishing to qualify as advocates will be required to apply in the first instance for a Certificate of Eligibility granted by an Advocates Rights Committee, once that Committee has been satisfied that the entry requirements have been met.
20.3 The entry requirements are that candidates should be members of good standing who are employed in a solicitor's or other litigator's practice and currently undertake civil, family or criminal work. Candidates will be required to have gained an 'acceptable level of experience'. In addition, they will be required to have 'sufficient knowledge' of relevant law and legal practice, to undertake an Advocacy Skills Course, and to provide references from two people able to offer an informed opinion as to their ability to meet the knowledge and experience criteria and their suitability to undertake the Advocacy Skills Course.
20.4 Separate Advocacy Skills Courses cover the skills required for each of the three Rights of Audience Certificates.
20.5 Candidates who successfully complete the appropriate Advocacy Skills Course after obtaining a Certificate of Eligibility and, where necessary, Fellowship will be able to apply for the relevant Rights of Audience Certificate (civil, family or criminal).
20.6 Advocates will be required to renew their Advocacy Certificates on either 1 June or 1 December, whichever is the earlier, after twelve months have elapsed from the date on which the Certificate is first granted. They will be required to provide details of their advocacy experience since the Certificate was granted and submit a portfolio describing advocacy undertaken and/or observed in three cases during that period. Applications will require confirmation by the applicant's employer of their experience. Thereafter, advocacy certificates will be renewed every third year.
20.7 Advocates will also be required to undertake five hours Continuing
Professional Development (CPD) in each calendar year focussing on advocacy
skills, in addition to the 8 hours CPD all Fellows are required to complete.
20.8 The Panel has a general concern about the extent to which ILEX itself, as opposed to its advisers, is fully in control of the qualification process. A professional body should itself make professional judgements about the competence of its members to exercise the rights it seeks to be able to grant. The use of external advisers is appropriate in many circumstances, but it should not be a substitute for the exercise, by ILEX, of its own judgement. In particular, it must be for ILEX itself, not its advisors or the providers of its training programmes, to set the standards that must be demonstrated by those to whom it wishes to grant rights of audience.
20.9 In this context, the Panel is concerned by the composition of the
Advocacy Rights Committee (p.25, para 11). This will comprise three Fellows
of ILEX, one nominee each from the Law Society and the Bar, and four independent
members. This is the body which will take all of the key decisions on the
granting and exercise of rights of audience, and on the accreditation of
training providers. Its relationship with ILEX is through an annual report
to the ILEX Council, a relationship which implies a hands-off approach by
the Council.
The Panel recommends that the Advocacy Rights Committee should have a majority
of members who are also members of, and accountable to, the ILEX Council.
The authority to grant rights of audience will vest in ILEX, thus the manner
in which those powers are exercised should be in the control of a body which
is fully accountable to the governing council of ILEX.
20.10 Paragraph 11 also introduces the concept of External Advisors. These
individuals are mentioned in several places later in the application, for
example p.29 para 27 (scrutiny of assessment materials) and p.64 (Certification
Rule 9) (assessment of portfolio). The External Advisors will have key roles
to play, but insufficient is said about the qualifications they should hold,
and the method of their appointment.
20.11 In some contexts, an External Advisor would need to have knowledge and experience of the provision of training (for example, when evaluating assessment materials). In others, the Advisor would need to have knowledge and experience of advocacy (for example, when assessing a portfolio of experience). The roles of the advisors, and hence the experience required, need to be clarified, and a distinction made between academic and practitioner External Advisors.
20.12 Two subsidiary questions arise from this. First, to what extent does ILEX plan to develop expertise in these areas amongst its own staff? Some expertise ought to be present in-house, so that the organisation is not totally dependent upon external advisors. Second, will the practitioner external assessors be ILEX members who already hold rights of audience? Or will they be solicitors/barristers? If the latter, are there plans to move eventually to self-sufficiency, with ILEX relying on the professional judgements of its own qualified members? A self-governing professional body should be able to rely on its own expertise to make practitioner judgements. This may not be practicable immediately in respect of newly-granted rights, but there should be evidence of a strategy to move towards self-sufficiency.
20.13 The Panel has a fundamental concern about who controls standards.
It is stated (p.32, para 36) that "formal assessment and competence
criteria were developed by the course provider, in conjunction with the
ILEX Advocacy Examiners". This appears to confirm that the prime responsibility
for standards rests not with ILEX, but with its advisors and, in particular,
its providers.
In the view of the Panel ILEX itself, acting through its Council and Committees,
should determine professional standards of competence. It is appropriate
for advice to be taken in this respect, particularly at a time when ILEX
has a limited number of advocates amongst its membership. Nevertheless,
decisions on standards should be reached by the body which is designated
as authorised to grant rights of audience, not by its examiners and course
providers.
The Panel advises that the application should be accepted subject to the following conditions:
20.14 In relation to the earlier submission from ILEX in respect of the rights now sought (which was withdrawn following consideration by ILEX of initial comments from the Panel) the Panel expressed concerns in relation to the level of knowledge and experience required by ILEX in certifying advocates, specifically:
20.14 The present application addresses these earlier concerns, with much improved Knowledge and Experience Guidelines (Appendix 1) and Portfolio Guidelines (Appendix 2).
20.15 Nevertheless, the Panel remains concerned at some aspects of the
proposed arrangements for giving credit for prior learning, especially prior
experiential learning. For example, there is a proposal (p.27, para 18)
to give credit for "advocacy in informal circumstances" such
as telephone conferences. Many skills can be developed in this context,
such as the marshalling and presentation of the facts of a case. However,
the application is for the authority to grant rights of audience in the
formal setting of the court, not in an informal setting. There is a need
for greater clarity about how informal advocacy will be assessed, for the
purpose of determining whether relevant experience is present, and what
balance will be acceptable as between actual advocacy in court or chambers,
and informal advocacy, for the purpose of granting a Certificate of Eligibility.
20.16 The Panel is concerned about the concept of allowing "credit
to be given in respect of knowledge which has been acquired through alternative
examinations to those offered by ILEX or which is evidenced in other ways
than by formal examination" (p.27, para 19). These concerns are not
with the principle involved, but with the lack of any indication of how
these alternative judgements will be made.
20.17 In the case of alternative examinations ILEX should maintain a list of acceptable alternatives. These would be likely to include examinations taken as a part of a degree course in law, or possibly the LPC or BVC (for candidates who did not complete the full professional qualification). Equivalence should be demonstrable by reference to the content of the syllabus and the material examined and also to the outcomes which must be demonstrated by successful candidates.
20.18 The Panel has greater concern about what is, in effect, accreditation of prior experiential learning. It is a fallacy to assume that experience necessarily results in learning. Experience may consist of getting the same things wrong over a long period. There has to be careful assessment of prior learning, to establish that learning has actually taken place. A common technique for testing whether experience has resulted in the acquisition of knowledge and understanding is to require the candidate to present a portfolio of their claimed experience, and for the possession of knowledge and understanding to be tested through a rigorous and structured viva voce examination. In the absence of a clear indication of the methodology that will be used to assess prior experiential learning, it is the view of the Panel that it should not be allowed.
The Panel advises the application should be accepted subject to the following conditions:
21.1 In relation to the earlier submission from ILEX, the Panel informed ILEX of its concerns that the formal training regime of the 5 or 6 day Advocacy Skills Course proposed by ILEX would not provide a sufficient quality of training for the rights of audience proposed. The current application goes some way towards meeting that concern, but a number of issues remain.
21.2 The focus on a purely skills-based formal training programme is welcomed
by the Panel. It is however concerned that the outlines provided by ILEX
for each of the three separate Advocacy Skills Courses are merely "indicative".
There is a lack of specified competence criteria or outcomes of the kind
properly to be expected in quality skills training programmes. Learning
outcomes are expressed, in general, as statements commencing with words
such as "considering", "preparing", "appreciating",
etc. These do not give any indication of the standard to which the activity
should be carried out for competence to be demonstrated. Learning outcomes
should be expressed more explicitly in terms of what the candidate is able
to do, so that assessment can measure whether or not that ability is present.
Further work is needed on this aspect of the application.
The Panel considers that ILEX should prepare clear course objectives and
competence outcomes for each Advocacy Skills Course, suitably developed
from the competence standards set for the experience required of potential
advocates in applying for a Certificate of Eligibility. This responsibility
rests with the professional body rather than the training organisation providing
the Advocacy Skills Course.
21.3 Appendix 4 sets out assessment criteria for Advocacy Skills Courses.
These should be amended to provide some guidance on marking schemes. For
practical demonstration of skill, a pass/fail threshold judgement would
be normal. This should be made explicit, and any element of the advocacy
criteria which, if not met, would lead to failure, should be identified
as such.
21.4 The earlier submission from ILEX in respect of the rights now sought (subsequently withdrawn) relied on the initial membership qualification and any continuing professional development for knowledge of Evidence and Procedure. It is welcome that ILEX will now provide materials and tuition relating to evidence in its Advocacy Skills Courses. However, there remains a need for a clear requirement that knowledge of Evidence and Procedure is assessed as a part of the course.
The Panel recommends that knowledge of Evidence and Procedure should be assessed and the pass mark or other criterion of success specified. If failure in any component of the overall assessment would, by itself, lead to failure, this should also be specified.
21.5 There is no detailed reference to how professional conduct issues
arising in advocacy will be addressed or assessed during the course.
ILEX should specify and use clear competence and assessment criteria in
relation to professional conduct issues included in the advocacy exercises
in each of the three areas of specialism.
The Panel advises the application should be accepted subject to the following condition:
21.6.1 There are limited procedures in place for the assessment of the proposed Advocacy Skills Course, both at the point of initial accreditation and subsequent re-accreditation. The Panel is concerned that there is a risk of inconsistency in accreditation decisions. There is a considerable reliance on the expertise and experience of the External Advisors who have a key role to play in accreditation. It would be good practice for the accreditation procedure to be codified in an accreditation handbook to ensure that there is a point of reference which will enable there to be consistency between advisors, and over time. There is no shortage of models on which such a handbook could be based, many professional bodies have them, as does the Quality Assurance Agency.
21.6.2 The criteria for accreditation seem to be heavily input based. There would be merit in placing an onus on course providers to demonstrate how the curriculum and teaching methods will be effective in enabling learners to achieve the intended outcomes. A judgement should then be made not only on the adequacy of the inputs, but also on the effectiveness of their deployment. This is a matter which could appropriately be dealt with in an accreditation handbook giving guidance on the nature of the submission expected from an organisation wishing to provide the course.
21.6.3 The accreditation handbook should also set out the procedure to be followed during accreditation visits. It would be appropriate to require course providers to provide a self-assessment document, in advance of an inspection visit, giving their own evaluation of strengths and weaknesses of the programme, and describing how any identified weaknesses would be addressed. This is consistent with general good practice in higher and professional education. It encourages the provider to reflect on their own performance, and to take ownership of any necessary changes.
21.6.4 The direct involvement of ILEX itself in approving an accreditation
handbook is desirable in order to demonstrate that it is ILEX, and not just
its advisors, which has control over standards.
21.7.1 ILEX proposes that newly qualified advocates should submit a portfolio of three cases when first applying for renewal of the Certificate. The Panel welcomes this, but is not persuaded that observation of advocacy is an acceptable alternative to acting as an advocate. The safeguard of completing a portfolio of three cases is undermined if the condition can be satisfied by observation alone. The Panel recognises the problem of gaining actual experience in proceedings where efforts are usually made to resolve issues without resort to open court advocacy. Nevertheless, there should be a requirement that at least one actual case should have been conducted.
21.7.2 In addition, the Panel is not satisfied that three hours of advocacy
skills-based CPD is sufficient by comparison with the requirement placed
on newly qualified solicitor advocates to undertake five hours of advocacy
related CPD in each year.
ILEX should reconsider the acceptability of observation of advocacy alone
and should review the amount of advocacy-based CPD to be undertaken in each
year of practice.
22.1 ILEX has not proposed any alterations to its Rights of Audience Conduct Rules for the purpose of the Application (see Part IV, paragraph 1). The Panel notes that the Application is based on the premise that ILEX advocates will be working under the supervision of solicitors and other authorised litigators, and thus would, in effect, be bound to comply with the rules of conduct of the Law Society or other equivalent body.
22.2 The Law Society and ILEX are working together to establish a memorandum
of understanding to ensure effective exchange of information and co-ordinated
action with regard to the investigation of complaints against legal executives
who are employed by solicitors and any disciplinary actions arising. ILEX
has not identified any other prospective category of employer.
The Panel advises that the ILEX / Law Society memorandum should be agreed
and formally established as a precondition to approval of the Application.
A similar memorandum will require to be agreed and formally established
with any other category of authorised litigator which ILEX has in mind as
a future employer of ILEX fellows.
Since ILEX is a body which is relatively new to the exercise of the authority to grant rights of audience, it should be required to conduct its own internal review of its procedures and requirements within a three-year period, with a view to making any necessary amendments or improvement to its regulatory scheme. In the course of doing so it should address those matters set out at Appendix C to this advice. [Appendix A, B & C are available from the Panel Secretariat, telephone 020 7210 8816.]
The Panel recommends to the Secretary of Sate that the Application be approved,
subject to the limitations, conditions and recommendations set out in heavy
type in the preceding paragraphs.