Judicial assessment will be a key component of the Quality Assurance Scheme for Advocates (QASA), rather than assessment by ‘quangocrats and drama coaches’ according to the Bar Standards Board chair.

Lady Deech said the controversial scheme ‘depends on the involvement of judges as the assessors of advocacy’, since the skill of advocacy lies in the ability to persuade the court of the advocate’s position.

Deech’s comments came as she delivered the annual Kalisher lecture to the Criminal Bar Association last night. She said: ‘It would be illogical for any sector, confident of its ability to compete as equals with the professional cadre of advocates, that is the bar, to prefer assessment of advocacy by a panel of non-court personnel.

‘It would be like a boxer preferring to be tested in a computer-simulated match rather than climbing into the ring.’

Not only would performing advocacy in front of a panel of ‘quangocrats and drama coaches’ be more expensive and artificial, and less convincing as a hallmark, said Deech, it would ‘evidence a lack of trust in judges, something fundamental to the rule of law’.

Deech said it could not ‘rationally’ be asserted that judges would consciously or subconsciously prefer barrister advocates to solicitor advocates, because the same requirements and performance are already expected in court from both.

Sam Steine QC, the BSB’s representative on the Joint Advocacy Group, which is charged with designing the scheme, answered questions at the event. He said judges will be trained in how to approach assessments, to ensure they understand that a client's instructions or behaviour in court may affect the way an advocate handles a case.

Stein said the scheme will be designed so that no single judge will be able to affect an advocate’s career, since assessment will not be dependent on the opinion of one judge.

Stein added that advocates should not fear that their tenacity and persistence in putting a defendant's case will antagonise a judge and lead to a poor assessment. 'The ultimate advocate is persistent and persuasive and able to get their message across politely. Even where a judge disagrees with the submissions, they will recognise that the advocate is doing their job,' he added.

Elsewhere in the speech, Deech said the independence of the bar remained under threat from the assault on the professions by successive governments.

She said the ‘chipping away’ at the independence and self-government of the bar came about through the belief that the public interest is best served by market orientation.

‘For more than 20 years the official policy towards the bar has been expressed in terms of competition, the market and consumerism,’ she declared.

Another major threat to the independence of the bar, in addition to the impact of solicitor advocates and cuts to legal aid, said Deech, is ‘unnecessarily complex, government-imposed regulation’ by the Legal Services Board, which is neither light-touch nor low-cost.

Deech outlined the BSB’s approach to regulation, which she said diverged in emphasis from the ‘predominantly economic approach’ of the LSB.

‘In today’s society, market forces, competition and consumer interests are not seen as co-terminous with the public interest, whether we are talking of health, education, the environment, the family or the law.’

She said the BSB favoured the approach to regulation commended by Professor Stephen Mayson, as a policy that ‘positively upholds those elements that protect, preserve or promote the democratic fabric of society and removes or reduces impediments to the ability of citizens, on an equal basis, to exercise their claims to civil, political or social freedoms and participation’.

Looking to the future, she outlined the ‘niche entity regulation service’ that the BSB proposes to offer those advocates that wish to operate in entities rather than as self-employed barristers.

Deech said a BSB-regulated entity will carry out the same range of services as the self-employed bar, with the same scope of regulation - there will be no handing of client money; barristers will be able to conduct litigation once trained; and the cab rank rule will apply.

No more than 25% of the managers may be non-lawyers; there will be no external owners who are not managers; and the BSB will require a majority of the managers of the BSB entity to be qualified to exercise rights of audience in the higher courts.

Deech said BSB-regulated entities ‘are being carefully crafted to suit the options that the public and the bar need’, while not damaging the distinct nature of the bar, and said there will be two further consultations on the plans.