Below, twelve questions and answers to act as your guide to BVT, OCOF, QASA and all that. If you’re a disgruntled criminal barrister (or even a gruntled one) or you don’t know your BVT from your GMT, you should READ THIS: Its not short, but it is important. And its not going to take you as long to read it as it took me to write it!
The Lord Chancellor and Minister for Justice, Chris Grayling, has this week announced that he is to ‘consult’ on introducing ‘Best Value Tendering’ (BVT) into the procurement of criminal legal aid. What does this mean for the criminal Bar, and what can we do about it?
Question 1. If BVT is introduced, what will it mean for the independent bar as a referral profession of high-quality advocates?
A. The end. Simple as that. BVT means, in Grayling’s book, a ‘one case, one fee’ (OCOF) competitively tendered for, end to end, arrest to disposal, criminal defence service. For pretty obvious structural reasons, barristers’ chambers cannot hope to be able to tender successfully for such contracts, and there is no economic reason why either solicitors’ firms, which do have the necessary infrastructure, or the new Legal Disciplinary Partnerships, or LDPs – StobartBarristers, the Co-Op, G4S – would want to enter into joint ventures with barristers’ chambers to tender. From having, at present, a ring-fenced advocate’s fee, barristers would be faced with have to bargain with purse-holding solicitors (and others) for whatever they could get out of the case fee, in a similar way they do with non-assigned magistrates’ court work presently.
Successful bidders will, initially at least, buy in the advocacy services they need – hawking briefs around chambers and solicitor HCAs to find the lowest bidder – while they assess their staffing needs at each level of QASA accreditation, and recruiting advocates to come ‘in-house’. Commercial pressures will dictate that recruitment will be price-driven. Barristers’ chambers will be raided, from the bottom up. Those not recruited will find that practice at the independent bar is uneconomic, and will leave (or join the CPS) chambers will implode – probably in a barrage of litigation – and the profession of criminal advocacy will have divided into a US-style system of DA prosecutors and public defenders.
If that sounds serious, it is. Make no mistake about it. There’s a juggernaut coming straight at us (and its got ‘Eddie Stobart’ written on the front). If we don’t move soon it will hit us, and we’ll be dead for sure.
Question 2. Surely, then, the government can be deflected from introducing BVT, with all of the consequences that follow, by a strongly-worded response from the Bar to the ‘consultation’ due in April?
A. I wouldn’t count on it. The fact that Grayling has announced when the tendering process will start gives a pretty good indication that he’s made his mind up, and is not really interested in hearing what anyone (except perhaps Eddie Stobart) has to say, but we have to respond, to say all of this, and we will. And rest assured that we (the CBA) is already on with the job of rounding up support for our case, in Parliament and elsewhere, but we have to face facts – there are no votes to be won in keeping barristers happy, preserving a criminal justice system that is the envy of the world, etc. Grayling is in charge of a spending department with one of the smallest budgets in government – £9bn – so when the Treasury comes to him and says ‘Make it £8.5bn or you’re on the back benches next re-shuffle’ any politician with aspirations to higher things isn’t going to say ‘No’. He’s going to look for the easiest target for cuts – one that won’t fight back, or, if it does, that won’t get any support from the public, or anyone who matters. Guess who that is?
Question 3. So, is the independent referral bar doomed then?
A. No. Far from it. BVT can be defeated, but probably not by reasoned argument, or not by that alone. Its going to take direct action. We need to understand two things. One, that if we don’t stick up for ourselves, no-one else is going to do it for us; and two; that we can do it, so long as we stick together. We do, this time, have the necessary leverage if we recognise it and are prepared to use it.
Question 4. Direct action? A strike, then? We’ve tried that, in 2005, and look where it got us.
A. No, not a strike. But something like one – a lock out – imposed (ironically) by our own pusillanimous regulator, the BSB. The key to defeating BVT/OCOF is in fact the Quality Assurance Scheme for Advocates (QASA).
Question 5. What has QASA got to do with BVT/OCOF?
A. Everything. Grayling can’t have BVT/OCOF without having QASA safely embedded first. QASA is the essential safety net that is needed to be put in place before the introduction of OCOF/BVT. QASA is an essential stepping-stone to contracting. Why? Because the Human Rights Act guarantees the right to legal representation to anyone charged with a serious criminal offence. The government can’t let just anyone do Crown Court trials. It needs a defence mechanism to the disgruntled punter who complains that he’s just got 15 years and his advocate was incompetent. Hence, QASA: “No, no, Mr Rapist – you’re wrong. He might look young and inexperienced, but he’s got an independently-certified QASA grading that says he’s competent to do your case.” If you want a fuller exposition of how and why QASA and OCOF are linked, read the CBA’s Response to the fourth QASA consultation: [here] The reason Grayling has ‘gone early’ with the contracting ‘consultation’ is that he thinks that QASA is ‘in the bag’, a done deal. We need to show him that he’s wrong on that.
Question 6. What’s wrong with QASA?
A. For a full answer, read the Response, but in short, we say that (apart from whether or not it should be embedded in professional regulation, which is another issue) QASA as presently structured has three fundamental flaws which make it not fit for purpose:
(1) plea-only advocates (POAs) or non-trial advocates (NTAs, as they are now re-branded). It’s just plain wrong to embed a conflict of interest between a client and his lawyer. “Mr Scroat, I can represent you, so long as you plead guilty. I advise you to plead guilty.” I say no more.
(2) allocation of cases to levels by negotiation between litigator and advocate. Picture the scene in a solicitors’ office near you:
Grade 2 HCA to self: “I know its an armed robbery, and ordinarily a level 3, but its really pretty straightforward. Do you think you can handle it?”
Self to HCA: “Yes, I think so.”
All together: “We’re agreed then – its a level 2. Sorted.”
(3) inclusion of silks. BSB: “You may have proved your excellence to the QCA, but you haven’t proved your competence to us.”
The CBA is not against a QASA-type taxonomy which genuinely assures quality, but we say that the QASA scheme, as presently structured, will perpetrate a fraud on the public by giving cheap, bad advocates a badge of respectability that their talents do not warrant, and we will have nothing to do with such a scheme.
Question 7. How did we end up with such a flawed scheme? Surely the BSB, which has barrister members, wouldn’t have agreed to something that the criminal bar couldn’t live with?
A. I’m afraid the BSB did exactly that. It (and not the CBA or the Bar Council) sat on the body that formulated and ‘agreed’ the QASA scheme, the Joint Advocacy Group (JAG) and despite being told in clear terms by the CBA and others what was, and was not, acceptable to the bar, it simply didn’t fight hard enough in negotiations with the other regulators – the Solicitors Regulation Authority (SRA) and the Legal Services Board (LSB, a.k.a. the government) over issues such as POAs, QCs and case allocation.
Question 8. OK, I agree QASA is flawed, and I’d like to boycott it, but that’s going on strike, and I’ve got a mortgage to pay.
A. Practitioners on the Midland and Western Circuits have been chosen by the BSB as the first to be required to apply for QASA accreditation, starting in September 2013. If you don’t apply – its self-accreditation at first – the BSB will tell you that you may not offer ‘reserved legal services’ (i.e. practice as a barrister) and you’ll commit a crime under the Legal Services Act if you do. So, notwithstanding that you’ve been doing the job perfectly competently for years, and your instructing solicitors will continue to love you every bit as much as they ever did, you won’t be allowed to go to work. I regard that as a lock-out, not a strike. The effect is the same, but one is much easier to justify to the public than the other – see below.
Question 9. But whatever you call it, I’m not working. Even if every barrister on my Circuit declines to sign up, what about barristers on other Circuits – and then there’s the solicitor HCAs. If I don’t do the work, someone will?
A. This is the $64,000 question, and the one that (understandably pessimistic) barristers always ask. The answer is: if enough of us stick together, the work won’t get done. In fact, I don’t think it will actually come to the point where its actually necessary to ‘go on strike’. The fact is that there are 130,000 Crown Court cases in England and Wales every year, and, despite the inroads made by HCAs (on both sides) barristers still do most of them. The CPS HCAs and defence solicitors simply couldn’t do all of the cases even if they wanted to. And if the government tried to encourage them to try by handing out grade 3 and 4 QASA accreditations like bus tickets, (a) they would be admitting that the scheme was a sham, and (b) most solicitors wouldn’t take them up anyway (and even if they did, their clients wouldn’t stand for it). I’m not naive. I know that not every barrister on each Circuit will refuse to sign up. There will be a few who will sign, but, for the reasons I have just set out, it wouldn’t be necessary to get a 100% refusal to make the boycott effective.
The key is to generate the momentum to achieve a ‘critical mass’. Before Midland and Western Circuiteers could be expected to boycott the scheme, they must have confidence that practitioners from other Circuits who were not required to be accredited in the first tranche, will not come in and do the work that they are disqualifying themselves from doing. The other Circuits – particularly the SE, because it is London barristers whom Midland and Western Circuiteers will see (rightly or wrongly) as the biggest threat – must meet, and resolve to support those in the Midlands and the West who are being thrust into the forefront.
It CAN be done. And it MUST be done. The alternative is unthinkable.
Question 10. Would a strike (or lock out, if that’s what you want to call it) be effective? And how long would it take to be effective – the ‘paying the mortgage’ point.
A. I firmly believe that it wouldn’t actually come to not going to work. The beauty of a boycott of QASA as a species of direct action is twofold:
(1) it is defensible in the media – even to a public that hates barristers. First, because it’s not about pay; and second because we will be demonstrably acting in the public interest. We can show QASA up to be the fraud that it is, and that our refusal to engage with it is borne of a determination to see that standards are kept high. (On this point, we need to emphasise that barristers prosecute as well as defend – we help to keep dangerous criminals off the streets.)
(2) We are not actually refusing to go to work: we’re being told by someone else – the BSB – that, despite the fact that we were competent yesterday, we’re apparently not competent today. If the Crown Courts grind to a halt, CTLs start to loom large, and all the rest of it, the responsibility for that will not be ours, but that of the government in the personage of the LSB and its poodle, the BSB, which attempted to require barristers to jump through a hoop they didn’t need to, for no good reason.
I firmly believe that the BSB does not have the courage to instigate a lock-out and thereby cause the chaos that would ensue. Why? Because the BSB knows (and would admit privately, but never publicly) that a QASA scheme with POAs in it is a flawed scheme. If, by the end of the three-month window for accreditation, no-one, or only a few, had ‘signed up’ I do not see the BSB having the courage to throw down the gauntlet and actually say “Right, as of [insert date here] those of you who haven’t signed up may no longer practice.” There would be chaos, the BSB knows it, and I am entirely sure that the BSB would, in such circumstances, simply not be prepared to take the step that triggers all of that. A pound in my pocket says that the BSB would simply throw up its hands and say to the LSB “Well, we tried to get a scheme through, and we failed: you sort the problem out now.”
Question 11. OK, so a boycott of QASA would be effective, but how would that help to defeat BVT/OCOF?
Faced with the prospect of Crown Courts in the Birmingham, Winchester, etc, grinding to a halt, the government would have two options:
(a) try and tough it out – hand out QASA tickets to anyone who asks for one (thus admitting that the whole thing was a sham from the start) and hope that they can keep the courts going ’til barristers are starved back to work. “We beat the miners; the barristers should be no problem” Well, they might try it, but, more likely, I think, is option:
(b) come back to the negotiating table left deserted by the JAG. And when they do, as our price for a real quality assurance scheme and a return to work, we demand an abandonment of BVT/OCOF, a seat on the Criminal Justice Board, beer and sandwiches at no. 10, etc.
Question 12 (the final question). Sounds good, but will it work?
A. I don’t know. I’d like to think so, but I do know that if we don’t try, the independent referral bar doing prosecution and defence work will be gone forever within, I’d say, three years. For me personally, its a no-brainer. I’m nearly 56 years of age. I have a mortgage, a wife and two children, the younger of whom is four years of age. I’m never going to be a QC or a judge, and imminent retirement is not an option. I have no transferable skills. Being a criminal barrister is all I know, and I need this job to be there for me for a good few years to come. I have nothing to lose by trying, and I would venture to suggest that there are a lot of you in the same boat.
We have to try. Lets have confidence in our ability to do it if we stick together, and just do it. We need our leaders – the CBA, the Circuit Leaders, to speak with one voice and lead us from the front. Then we need the CBA chambers reps to get the troops in the trenches organised.
If anyone wants to agree with me, disagree with me, or come up with a better plan, email me: ianswest@o2.co.uk. Follow me on Twitter: @ianswest.
Ian West,
Fountain Chambers,
Middlesbrough.
NE Circuit representative on the CBA Executive Committee
Member of the CBA QASA Response Team
Member of the CBA Contracting Response Team
The views expressed here are, however, MINE, unless of course, members of the jury, you happen to agree with them…..
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Brilliant piece. I’m a solicitor (HCA). I and all at my firm believe that there must still be an independant Bar. It is impossible for us to cover all crown court advocacy. Firstly QASA or not, we are well aware in a great many cases the best position for the client is to be represented by a suitably qualified member of the Bar. Our reputation with our Clients depends on a quality service. We at present cannot afford to jeapodise this.
We will all suffer at the hands of PCT. The only way to defeat it is to stand together as one profession. I can’t imagine a single decent firm in our area of Kent stepping over the metaphorical picket line in respect of QASA, if it ment the Bar standing firm with Solicitors over PCT.
Patricia,
With your considerable intellect I’m confident you will readily appreciate the following:
Grayling and the MOJ are determined to reduce legally aided criminal defence to a series of low cost, low quality one stop shops, owned and run (after a fashion) by the likes of Edddie Stobart, Tesco, Co-op et al. It will not stretch your powers of analysis too far to see that this will mean the end of the independent criminal bar. Our precious profession and livelihood.
Now, Grayling needs to provide this awful arrangement with a facade of legitimacy in order that he can say to the public ‘Well, I know we have had to massively reduce the legal aid budget, we’re all in this together in times of austerity. However, never fear, standards of representation haven’t dropped. I have personally (in conjunction with BSB and SRA) seen to it that there is a rigorous assessment scheme: QASA.’
So, to sign up to this would be to sign our own execution warrants, which we won’t do. If you are correct, and I suspect you may be, that they will introduce BVT anyway then we may aswell die trying to save our livelihoods.
It cannot possibly be in our interests to comply. You must see that.
This is not personal, despite the fact that our future careers, homes and livelihoods hang in the balance. I do not know you, therefore have absolutely no reason to doubt your integrity. However in light of all of the above, and the awful and inevitable consequences if Grayling succeeds I have great difficulty in accepting the sincerity in being constantly told that this is in my interests and not linked to funding when we all know that both of those statements are untenable.
Thank you for your time.
Scott Wainwright
If anyone had any doubts that there was a direct connection between QASA and BVT, look no further than the LSC’s response to the latest QASA consultation at p122. It says:
“1.1 The Legal Services Commission (LSC) recognises the high quality of service provided by very many publicly funded advocates and the important role that they play in the effective operation of the justice system. It is also important to recognise that the need for a quality assurance scheme is not just about identifying those less conscious of their own abilities.
1.2 The LSC believes that the introduction of the Crime Quality Assurance Scheme for Advocates (QASA) will play a vital role in supporting the market and the professions and enabling consumers and procurers to have confidence in the advocacy services they purchase. In the current economic climate, ensuring “value for money‟ is paramount.
1.3 The legal services market is changing; the acceptance of new and alternative business structures and trends to keep criminal advocacy (including prosecution advocacy) in–house has seen an increase in competition for advocacy services, with less reliance on the self-employed advocate. This will continue to offer benefits to some and create challenges for others, but for all there is the need for a common quality standard to ensure a level playing field.”
That is pretty much an explicit acknowledgement that the LSC needs QASA before BVT.
I won’t sign up.
I hope the Midland and Western Circuits can rely upon the clear support of South or any action we take quickly will fail. I note from the responses to the latest consultation that many solicitors do not agree with QASA in its current form. It is vital that sentiment is translated into action.
Daniel Oscroft
I whole heartedly agree with this analysis .
I agree with my colleagues Andrew Vout and Simon Eckersley I will not be signing up to QASA
Robert Egbuna
1 High Pavement Chambers
Nottingham
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You have my total support-Let’s come together to fight it all the way.
Whenever action was talked of before, I heard members of the bar expressing the view that the public has no appetite for the woes of our profession. I don’t believe that sentiment. Legal dramas on TV in recent years have humanised the role of the criminal barrister in such a way that the public would be astonished to learn of the fee level and we are expected to work for. Prosecutors must get in on the act.
The system is going to rack and ruin and the judiciary (especially the plea only ones-you know who you are!) should be ashamed of the way they silently watch from the sidelines. The Gov are banking on our past reticence to act on our own behalf as the green flag to demolish the rights we all enjoy to a fair justice system. What next, no legal aid at all?
For far too many years the overwhelming majority of the membership of the criminal bar has been told to keep their powder dry for the real fight about the retention of the profession rather than its piss poor remuneration. I believe the two matters are inextricably linked. The momentum being created must not be given up just to create a gratefully underpaid vocational membership.
Terence BOULTER
FURNIVAL CHAMBERS
I suggested yesterday on Twitter that members of our profession would be better served by engaging in dialogue with Patricia Robertson QC and (by implication) others at the BSB, rather than engaging in gratuitous abuse. I am delighted to see that dialogue on this blog – and delighted to see Patricia responding as she has.
For my part I have been involved in Advocacy Training both in Chambers and at my Inn for the last 15 years and having now been Head of Chambers for the last 15 months, I have been able to see the real effects of the slashing of fees and the nature of the depression that pervades the Criminal Bar. I am hugely proud to be a member of this profession but it is clear to me that, in its current form, QASA exists as a mechanism not to establish quality but to establish a level of remuneration which is guaranteed to lower earnings for all, from the most senior to the most junior while doing nothing to serve the interests of our clients. It will mean that the Criminal Bar will not be able to retain let alone attract the brightest or most committed but only those who can afford to stay or come because they have access to other funds. Having gained the diversity that we have with all the advantages that that diversity brings, do we really want to extinguish that now? What a terrible legacy we will leave for the future.
Frankly, I find it impossible to improve on the views expressed in particular by Simon Myerson QC who brings to bear, on this issue, a range of experience and expertise which none of the rest of us can match. I will therefore bow to established precedent and declare that for the reasons he gives and with which I completely agree, his arguments must prevail.
I see I am quoted as supporting an assessment system for advocates – which I do. What I don’t do is support QASA as that system. It is important to analyse why the one does not lead to the other. In so doing, I ought to say that I am BSB as opposed to BC: 6 years on the conduct committee. 2 years on the education committee (relieved of responsibility because all meetings were in London and I couldn’t get to them from Leeds – my suggestion that there ought to be a meeting in Leeds was not treated seriously) and 4 years and counting on the pupillage committee. I also split my practice between crime and civil, so I am a true relic of older times.
The point of a system of accreditation is to reassure the public that quality is ensured. It is worth reflecting on what that means in terms of pupillage standards and the standards of legal education. Either it has always been the case that a sufficient number of advocates to justify a scheme were substandard and the issue has been concealed, or this is a more recent development and there is a collective failure here, for which the profession (and its regulator) needs to accept responsibility before remedying matters. My experience is personal and therefore anecdotal, but I believe the latter explanation to be correct.
How then is the aim of assessment to be achieved? I think that the obvious starting point is to ask what precise quality is to be assured. The answer seems to be the quality of advocacy. What does advocacy entail? Obviously, an ability to speak for the client with reasonable fluency, an ability to understand the legal issues in the case, an ability to judge the relative importance of those issues and the strength of the competing factors suggesting which way the result will go. An ability to listen to the client, understand what they are saying and apply the account you are given to the facts. An ability to carry the client with you in terms of the strategy and tactics adopted. An ability then to achieve a realistic result, which takes into account the fact that criminal cases – and here crime differs greatly from civil – are enormously fluid.
Some of this will be affected by experience, which is why CPS grading is a good thing (leaving aside particular criticisms of the system). But what is being assessed there is the ability to advocate for someone. By contrast, QASA assumes that the qualities necessary to represent someone who will admit to something are different from the qualities necessary to represent someone who won’t. Not only does that beg the blindingly obvious question “when do you know who you’re representing?”, but the assumption itself is incorrect. There are two ways to test this: ask what happens to someone who says their confession was forced out of them, but says so only after they have pleaded. Under QASA such a person might never have encountered anyone who was competent to even ask them that question, let alone to assess the evidence to see whether it might be so. Are we really saying the risk is small enough to take (bearing in mind this is largely a discussion between lawyers, not one in which the politicians have a say)? Next, ask what happens to the person who is guilty but on the day of the sentence wishes, properly, to challenge the account of the main witness against them. Represented by a POA are they, in fact, being represented by a person who is able to do the job? Both of these events are common.
Moreover, QASA acknowledges that POA do not have the necessary qualities to do a trial. That is a conclusion reached without any assessment, from which the only logical deduction is that the conclusion is plain. How does that preserve public confidence?
Further, the acceptance that competent advocacy can be divided by what the client is prepared to admit at some rather random point, entirely gives up the argument that competent advocacy involves judgement and continuous assessment of the position. Not only is that not in the public interest, but it makes a nonsense of the argument that accepting POA advocates was a wise and foresighted move. If – as I agree it is – the question is one of not acting out of your competence, then the practitioner should be compelled to assess the actual service being provided, rather than the label attached to it for the purpose of listing. The BSB has abandoned that argument and I neither understand why, nor have been told why.
All of this ignores any argument that QASA is linked to BVT. But common sense suggests that, if you impose an incomplete standard which takes as its starting point an attenuated definition of advocacy, more people will attain it than if you impose a complete and higher standard. And it is basic market economics that the more people there are providing a service, the cheaper the service they provide tends to be. So, if I was the government, I would actively want the lowest justifiable standard I could impose. That being so, to deny a link between QASA and BVT needs a justification, which I have not yet seen. That may be my fault.
Finally, are we cutting off our nose to spite our face by rejecting QASA? It depends what will happen. The prediction that we will not be allowed to work, but the work will then go to others is, rationally analysed, a concession that QASA will mean nothing, because anyone who asks will be passported into trial advocacy. What’s more, the proposition that we will be committing a professional offence is true only because (and if) the BSB decide it should be so.
In my view the Bar ought to make itself responsible for a proper scheme using retired Judges, Silks and senior practitioners with the confidence of the market and, if it costs, it costs. That scheme ought to assess practitioners (of either profession) by asking whether the person being assessed is capable of achieving the result the client wants, without simply fluking it, on the basis that the result is realistically achievable. Other skills can be assessed against that overall criterion. In my view such a scheme would command public confidence. Why should there be one monopolised scheme? Why shouldn’t the market decide on how competent the competency schemes are? And, if the MoJ goes ahead anyway then the scheme will be one to license defence advocates run by the government, which prosecutes. At that stage we will all have another choice: maybe it will be worse but it will at least be a naked attempt by politicians to ensure that those charged with criminal offences have a choice representation based entirely on the cost to the taxpayer.
Informing all of this is the fact that, in common with the vast, vast majority of my colleagues doing criminal work, I am proud to give a voice to the inarticulate, the damaged, the stupid and the bad. First because when someone does this it is an acknowledgement that we are a society, rather than a collection of people out for what they can get. Secondly because very few people are born bad: my vicious clients are 20 years away from being vulnerable kids. That’s easy to forget in the self-righteous rush to condemn anyone who does something you don’t like. It’s much more difficult to forget in the confines of a criminal court, faced with a report making it clear that your client didn’t have an MP’s advantages. Thirdly, because then – when they are subjected to unpleasant and long-lasting punishments I am as certain as I can be that they deserve it.
I don’t ask my regulator to fight that fight for me. Its job is to make sure I am behaving properly and (assuming a need for quality control) to make sure I am up to scratch. But, unless my regulator disagrees with the need to do the job wholeheartedly and independently, I am entitled to ask it not to support schemes that are actually inimical to our professional purpose. Which is what I am doing. Sorry to go on.
As a (very) junior member of the family bar I am terrified at the thought of the Eddie Stobart juggernaut heading our way. Although instinctively against direct action as a means of negotiation – I fully support the thoughts outlined in the article. To the guinea pig circuits – fortune favours the brave! We need to stop the folly of the legally illiterate Lord Chancellor and the pet poodle BSB coming to fruition!
Enough is enough. It is time to stop the talking and refuse, in the public interest, to do the work. The courts cannot manage without the independent Criminal Bar. The system will fall apart within a fortnight. But it will never get to that stage because the the Government’s reaction will be that of every bully – capitulation at any real sign of resistance. Just as it was five or so years ago when the Silks refused to appear in murder cases…. and within a few weeks the
Government had backed down, terrified of tabloid headlines about murderers walking free when their CTL’s expired.
It is utterly fanciful to think that CPS or solicitor HCA’s will take up the reins and manage without us. There aren’t enough of them to do it and few solicitors I know would want to start defending child rapists facing ten or more years in prison. Every serious case the CPS has would have to be taken over by their own advocates – who would not be qualified to do the work and who would not have the time to prepare it.
So – bring it on. Let us see who blinks first.
First, I am not a barrister (yet). I am but a law student in Sydney. I have been active in BI and IT for 2 decades. When I read about BVT, to me it read like a Service Level Agreement set to the cheapest option, but at what expense? Every SLA comes with limitations. You get what you pay for and you get offered for what one gets billed. How long until the best possible defence is no longer an option? If corporate barristers will ever become a reality, then they will always have the best options. BVT would not apply to them in such situations. I have still much to learn, but this was the thought that struck me.
Kindest regards,
Lawrence.
Patricia – we know that the publication of the responses has been delayed, but will happen soon. Do you know what the delay is? Could you give us some indication of what proportion of the respondents were in favour of the scheme?
I’m afraid that the above argument by Patricia Robertson and the BSB demonstrates just how to miss the point and misread the mood of the Bar. This time, we have to make a stand and promise the Midlands and Western circuits that we will not break ranks. This is our last chance to show that we “coal face” practitioners, the ones who really know what the true objections are, are capable of unity.
If they do roll the dice, we must stand firm
Patricia,
We understand that the criminal bar needs to operate within a regulatory framework. We understand the role of the BSB in ensuring effective regulation.
What we find objectionable is the fact that the BSB have failed to listen to those it regulates. Those who work within the system daily.
One of the key criticisms of the scheme is the concept of plea only advocate. The overwhelming majority of those whom you regulate find such a concept wholly objectionable. It allows those without the relevant trial experience and expertise to advise a client on plea, in circumstances where they can only represent the client on a guilty plea.
Whether or not an individual has a viable defence may well depend upon the subtle dynamics at trial. I frequently find myself in a position of advising on plea where the decision to proceed to trial or plead is a finely balanced exercise. The ability to advise on the prospects of success at trial comes from many years trial experience. I am eleven years call, and still now frequently find myself in a position where I think a case ought to be returned to someone more senior because of that issue. Proper advice on plea in respect of serious cases should come only from those competent to undertake trials at that level.
No one has been able to advance a sensible argument for plea only advocates that is able to overcome this fundamental objection.
Our observations have been ignored by the BSB. I have no intention of signing up to QASA, and if it means that I move to another career or field of law, then so be it.
You will no doubt have observed from the content of the posts on this website and elsewhere, that the feeling across the criminal bar on this issue is very strong. Powerful and coherent arguments have been deployed on our behalf before the scheme was finalised, yet still the scheme is being rolled out.
You make the point in your earlier post that if we do not sign up we risk others coming in and taking the work. You underestimate the resolve at the Bar. If none of us sign up there will be insufficient advocates to conduct the work and the criminal justice system will fail. Who will be prosecuting and defending the most serious cases then, the murders, terrorism cases, rapes, sexual abuse?
You know, and the Government know, that without the Bar, there are insufficient advocacy resources to cover all the work.
The staged implementation process is designed to overcome this possibility, but it relies upon the willingness of those doing the work to cover the work of our colleagues. We will not do that, if you believe we will, then roll the dice and see.
The system will crumble and the fault will lay at the door of those who would not listen to the people best able to help in the regulation the profession, The Criminal Bar.
Marc Brown
2 Pump Court
The “sensible objections” to your argument are as follows:
Firstly there are cases where a G plea is clear cut. I could give examples but plain fact is that as criminal lawyers we all know that.
Secondly, the logical extension of “you need to be a trial advocate to advise on plea” is that you would need a level 2,3 or 4 advocate in the police station every time someone is interviewed on a case at that level. After all, they need advice whether to comment and that might include making admissions to the offence.
Then you have the first hearing in the Mags Court. Plea before venue or a sending. D is always asked whether he wants to enter a plea. With your logic you must have a level 2, 3 or 4 advocate at every first hearing to advise on this – and credit now runs from that first hearing.
The reality is that there are cases where the plea may be uncertain and responsible solicitors will, and have for years, advised the client to preserve their position pending advice, usually from Counsel or alternatively an HCA with trial experience.
And there are cases where the evidence is overwhelming and the plea clear.
The BSB, SRA and JAG have all accepted this position and moved on and the bar needs to as well. There are some very sound, principled objections to QASA (see Moses LJ as referred to above) but this is not one of them.
Andrew,
The case against POAs is soundly based in principle: principles enshrined in the LSA, s.1. The arguments you deploy to rebut the case against POAs are those commonly advanced. They are misconceived. True, solicitors give advice about whether to admit an offence in the police station or to plead guilty in the magistrates’ court, but whereas at present, if that case then proceeds to the Crown Court, because condign punishment may follow conviction, that advice is able to be second-guessed by a specialist advocate, used to conducting jury trials, who may advise differently. Where the litigator and the POA are the same individual, this safeguard is lost.
More fundamentally, your arguments are not based in principle, but expediency only.(“What’s your gripe about persons unqualified to conduct trials giving advice about plea – its been happening for years”). Which is precisely our point: POAs are wrong in principle, and the fact that they may be expedient for a particular interest group – solicitors who want to cream off the advocates’ fees for ‘easy’ guilty pleas – does not change the fact that they are just plain wrong. Nice try, though.
Ian West.
I have stuck my head above the parapet because I can’t watch a profession I am proud of tear itself apart by embarking on a strategy I am convinced is misconceived and will be self-defeating. Nor can I allow the views that are being expressed here about QASA to go unchallenged. Deciding to just shut up for the sake of a quiet life isn’t an option. As a number of you have not been slow to point out, I am not a criminal practitioner myself, my practice is civil and regulatory, but it doesn’t follow that I don’t care about the criminal justice system or the crucial role of the criminal bar in that system. You strike – you don’t get the work and others do. Those you see as poised to sweep away the independent criminal bar take advantage of your absence from the field to mop up the work and consolidate their position. You suffer and justice suffers as your talent and experience is withdrawn from the criminal justice system. Your strategy is predicated on the gamble that this high price is justified because by opposing QASA you will defeat OCOF and BVT. I’ve already said in my earlier post (15 March 4.55pm) why that just doesn’t follow.
To answer Ian’s question, yes I have read his post, the CBA’s consultation response and indeed the other consultation responses. I am sorry the report on the consultation responses has not yet been published. I understand the frustration that is causing and can only apologise for the fact it has taken longer than one would have hoped.
The MoJ’s agenda is theirs, not mine. Mine is to regulate the Bar independently in the public interest. When MoJ do publish their consultation, the BSB will be focussing on whether the proposals have an adverse impact on the regulatory objectives, which include competition and the interests of consumers but, importantly, also include the public interest, the rule of law, access to justice, encouraging an independent, strong, diverse and effective legal profession and maintaining the professional principles. The challenge for MoJ is to use public funds as cost effectively as possible in a time of austerity but we all need to work together to ensure that is achieved without damaging the effectiveness of the criminal justice system. My plea to you was that you too should focus on those public interest issues, and not on opposing quality appraisal.
Many of you agree with us that there is a need for quality appraisal. In some areas of practice it may be reasonable to take the view that clients are able and likely to sue for damages if their matter is handled incompetently and that professional indemnity cover will provide financial redress. In criminal practice, however, the victim of any incompetence (whether someone wrongly imprisoned or a victim of a crime whose perpetrator wrongly goes free) may be very ill-placed to spot incompetence or seek redress, may not have any civil claim and, in any event, money doesn’t meet the wrong. It’s reasonable for a regulator to take the view a pre-emptive approach is justified. It’s then a question of what approach to quality appraisal best serves the public interest.
So I come back to the question whether QASA is really, as many of you argue, flawed and the end of the independent criminal bar. Not so. The threats to the continuance of the independent criminal bar are real and you are quite wrong to think the BSB indifferent to them but they don’t come from the introduction of QASA. I addressed the supposed flaws in QASA in my earlier post here (15 March, 4.55pm) and won’t repeat myself but I do want to add a further word on PoAs because so many of the posts on this topic come back to that issue. When people describe the scheme as a “sham” it is invariably to this that they are referring.
It’s wrong to berate the BSB for ensuring that PoAs are, for the first time, to be appraised. This is a step forward. The BSB can’t ban solicitors from adopting a mode of practice that does not include conducting full trials. What the BSB can do, and has done, is insist that they be appraised across the same criteria so the public has reassurance about their competence. Ian argues, above, that QASA is thereby embedding a conflict of interest (“plead guilty so I can represent you”) but he does not address the point Andrew Bishop makes in his post (March 10 at 3.45) that, in theory, the barrister is equally exposed to temptation (“plead not guilty (so I get a trial brief)” and then advising a plea at the door of court). You would all rightly say that neither you nor anyone you know would behave like that. I agree. But Andrew would say exactly the same about the arguments the Bar has directed at PoAs. The fact is that appraisal for all, by the same standards, is quite obviously a better solution in the public interest than none at all, or a proliferation of different schemes with different criteria and different standards.
I am grateful to Ian for affording me a right of reply and to you all for expressing your disagreement courteously. Please reflect on what I have said.
Leaving aside for a moment QASA [and the necessary Law Degree; BVC; followed by pupillage selection (which I know at one stage was around 1200 applicants per position at my chambers); selection for tenancy thereafter and CPD]; what of BVT – do you agree that this has nothing to do with value & quality and everything to do with cheap justice that ignores the cost to society?
I am still at a loss to understand how a system of quality assessment that gives a veneer of respectability and competence to a level of advocate who is not suitable to conduct the trial but is allowed to conduct the PCMH is a rigorous system that assists the public. Is this not what the CPS have been criticised time and time again for? Does that not defeat the purpose of the PCMH? That the Judge is assisted by the advocates to address the issues that arise in trials? I refer you all to
Click to access crim-pr-part3-pcmh-guidance-notes-aug-2011.pdf
where it is said that
“The Plea and Case Management Hearing offers the best, and often the only, opportunity for the judge properly and effectively to manage the case before it is listed for trial.”
and goes on to observe
“Advocates should attend the hearing fully prepared to deal with the issues that are likely to arise, and the listing officer should consider reasonable requests to list the PCMH to enable trial counsel to attend.”
An advocate appearing at that hearing who is not competent to conduct the trial will be, in many instances, wrong. QASA in its current form actively encourages it. It is at the very heart of the problem of inefficiency and mis-management in the criminal justice system that PCMHs are not conducted rigorously enough. QASA will increase this inefficiency.
I cannot begin to relate how often I see poor case management as the result of the advocates at PCMH lacking the experience, ability or competency to conduct the trial. Poor decisions made about things like acceptability of pleas, the service of or need for additional evidence, which witnesses are required and even issues relating to pleas and basis of please. These are not fanciful examples. These are things I witness all the time. What I do not encounter is these issues arising when the advocate who conducted the PCHM was an experienced, competent trial advocate whether they be barrister or solicitor. QASA with POA will, at best, do nothing to diminish this malaise. In all likelihood it will make it worse.
The CJS cannot withstand initiatives and schemes that diminish the standards any further. Any criminal lawyer, actually any lawyer who values the effective administration of justice in our criminal courts will say no to QASA.
I appreciate the views of Patricia Robertson QC are genuinely held and well meant. But please listen to those of us at the coal face. This is not us picking a fight for the sake of it. This is not self-interest. This is because we know the currently designed QASA system is flawed. That is why there is such widespread opposition to it. In recent years I have witnesses the Criminal Justice System sliding towards chaos and mediocrity. QASA is not the solution and will be one of the causes. I am not sure how much more I or the CJS can take.
Lets not conflate two different things.
We can all agree that advocates without trial experience should not routinely conduct PCMHs. Where my firm identifies a likely NG plea that we are not dealing with in house we always brief pre PCMH.
However, we all know that there are many cases that are known G pleas. Those are cases that advocates don’t necessarily need trial experience to conduct.
If anyone argues you need CC trial experience to advise on whether it should be a G plea then you would need a CC trial advocate experience lawyer in the police station to advise whether an admission should be made and in the Magistrates Court at the plea before venue stage.
If you are routinely seeing PCMHs conducted by non trial advocates then I won’t defend that but neither will I accept such advocates may be perfectly competent to conduct GP cases.
Like the rest of you, I am sure, I need to spend today focussing on my client’s problems, not ours, so I am going to keep this short and may not be able to sweep up every point.
My personal view is that there are circumstances, such as those Andrew identifies, where the client will be perfectly well served by a PoA and, therefore, my view is that saying the option should not even exist is overkill and a form of gold plating (even if we could dictate in that respect to the SRA, which under the LSA 2007 regime we cannot do). Furthermore, I can envisage legitimate reasons (such as family responsibilities or managerial responsibility for others in the firm) why a solicitor might adopt a form of practice that does not include trials. The issue, as ever, is not acting beyond your competence and recognising where that boundary lies. That issue is not unique to PoAs, we all have to make those judgments (see macjbrown’s comments). We continue to discuss with the SRA what steps they will require a PoA to take to ensure that their client is aware of the limits on what they can do for them. The problem Jaine identifies about attendance at PCMHs requires the presiding judge to enforce existing procedural rules.
I wasn’t at the March Bar Council meeting Ian mentions (Bar Council, note, not BSB) but I do know that Baroness Deech is more sceptical than I am about whether PoAs are, per se, a problem. I totally understand that many of you share that scepticism. However, and let me be very clear about this, the board of the BSB debated what its policy should be about this, after considering the consultation responses, and after considering the views expressed round the board table, and concluded that the right course was to go ahead with QASA on a basis that includes PoAs. It’s really very simple: if you are right that PoAs pose a particular threat to quality it is profoundly illogical to exclude them from an appraisal system which is designed to protect the public. If the risk they pose is no greater than others, then likewise. At the two year review point, if we get implementation right, we will have evidence, as opposed to anecdote, from which to judge whether further regulatory intervention and if so what is justified.
However, if instead the CBA persuade the criminal bar not to get accredited then I genuinely believe the effect of this campaign will be the criminal bar cutting off its own nose to spite its face, because others will mop up the work and if QASA is derailed there will be little or no quality safeguard guaranteeing they are up to the job. I share your concerns about the pressures on the criminal bar, because I believe there will be an adverse impact not just on barristers but on the public interest if the criminal bar were to be decimated in the way many of you are predicting, I just don’t believe this is the way to address those concerns.
Lastly, please recognise that there’s a difference between consultation and holding a vote. We have consulted on this four times and, believe me, we have thought very hard about the responses but we’re going ahead because we take the view that it’s in the public interest that we should do so. I will see what I can do to hurry along publication of the report. And now I must turn to the papers in hand, so forgive me if I go quiet for a bit.
“…may not be perfectly competent to conduct GP cases” (missing not in last post!!)
Jaime,
Much as I’d like to be able to, and much as I admire her courage for sticking her head above the parapet here, I’m not sure that I can agree that “the views of Patricia Robertson QC are genuinely held and well meant”. The BSB has admitted privately to the CBA, and semi-publicly at Bar Council, that POAs are not in the public interest. I have no doubt that the BSB expressed this view in the ‘negotiations’ with, particularly the SRA, in the JAG. The SRA dug its heels in, and made POAs a sticking point, at which juncture the BSB, instead of walking away, or seeking instructions, and then walking away, said “OK, so long as you give us judicial evaluation.” In my book, that is an abdication of responsibility – statutory duty, even – and the most charitable gloss I can put on the BSB’s tawdry attempts now to justify POAs is some sort of misguided ‘cabinet responsibility’ for what came out of the JAG. But I am, I’m afraid, disinclined to put such a gloss on it. Its just hypocrisy.
Ian West.
Patricia,
I too admire your courage in entering the lions’ den, and being willing to engage in a dialogue with me and other barristers. I only wish that the BSB had been willing to do that during the fourth consultation. May I respond – relatively briefly this time – but I regret to say that shall have to re-issue the invitation I extended to you to justify POAs in the public interest. For you have not answered the question, and, in the best traditions of the criminal bar, I am not going to allow you to get away with that!
Before I return to that, may I deal with a couple of more minor matters.
First, I do not agree that the necessity for regulatory intervention is proved, as you suggest at least some barristers acknowledge. The LSA was born of Clementi, and Sir David Clementi was brought in to deal with a widespread perception that the system of self-regulation of solicitors had broken down. There was no problem with the Bar Council’s regulation of barristers, but Clementi took the view that he might as well look at that too, as he was in the neighbourhood. Now, in 2013, I say that there is no ‘problem’ of the quality of service provided by criminal barristers. As a referral profession, on the ‘cab rank’ (for so long as that exists) a barrister is judged every day on his or her performance by a discerning judge – the solicitor who briefs him or her. There is a problem with underperforming solicitor HCAs who are only doing cases because the client walked in through their door first, and they did not, in their own financial interests, refer the client on to a barrister. That said, barristers accept that they must compete on a level playing field with solicitor-advocates, at least in the sense that if there is to be a quality assurance scheme, it must apply equally to all. That recognition is why barristers do not oppose quality assessment; they oppose QASA because it is so weak as to be worse than useless. As I have said a number of times, the CBA has proposed a workable scheme that would really ‘do what it says on the tin’, but the forum for that negotiation is with the LSC, not (initially at least – unless it is tried, and fails) the professional regulators.
I have set out why we say that QASA is linked to OCOF, and I do not repeat it here. It is not possible to disentangle them, even if that were ‘a good idea’, which it is not.
Returning to the main point, you have failed to explain how a scheme with POAs in it, and the embedded conflict of interest that you appear to acknowledge, advances the public interest. It is no answer to that question to point to Andrew Bishop’s anecdote, and say “Well, there’s already a conflict of interest embedded in the graduated fee structure.” Are you saying that all principle has gone, so we may as well be hung for a sheep? In fact Andrew’s argument, adopted by you to deflect attention from the fact that you have not answered my question, is fallacious, and concerns a point entirely different in character. The graduated fee scheme is (or was) deliberately structured to link advocates pay to a number of proxies for complexity, and time engaged – one of which is whether the case has had to be prepared for trial. The ‘conflict’ that Andrew identifies is in fact simply a necessary adjunct of that structure. And the evil that results is nothing like as damaging where it happens, if it does. (Of course, I cannot say that no barrister would do what Andrew alleges, but I doubt that the practice is widespread. A barrister who did it would be unlikely to find himself briefed again.) In the conflict that POAs present, the evil is that the client pleads guilty, with all that that entails – principally punishment – when they may have a defence. The evil that Andrew’s scenario presents is ‘merely’ that the client suffers a harsher punishment by a reduced discount for plea. One often hears defendants complain that their barrister ‘got me to plead guilty and I wasn’t’. I have never heard of a defendant complaining that his barrister’s advice to plead guilty came later than it should have done (though again, someone may put me right!)
If POAs are permitted, there will be a flurry of appeals and complaints to the professional regulators: “My advocate told me to plead guilty. I didn’t want to, but he insisted. Now I find out that he couldn’t have represented me if I had pleaded not guilty, and he would have lost thousands of pounds.”
I repeat: Please explain to me how a quality assurance scheme which invites this scenario is in the public interest, and promotes the regulatory objectives in s. 1 of the LSA, as opposed to being simply expedient. The solicitors wanted it, and you gave in to them. Tell me it wasn’t so.
Ian West.
PS. If you are willing, why don’t we have this debate in front of a wider audience. I’m think of a ‘talking heads’ piece in, say, The Saturday Guardian, or elsewhere. You up for that? IW.
Ian,
My anecdote was a tree one, trust me. I can also agree with you that I would never brief that barrister again (he evaded the sentencing hearing, I did it and even went to Court of Appeal for the client).
My point was simply that self interest can be alleged so easily. It was you the raised the prospect of a HCA advising a client to plead guilty just because he or she could deal with that case but not a trial.
I genuinely believe that in the overwhelming majority of cases. Barrister and solicitors act professionally. Solicitors with plea only experience in the CC faced with a complex case with evidential uncertainties will instruct Counsel to advise. These are our clients. We want the best for them because we want them to come back to us. Why do you find it so hard to trust solicitors to identify such cases where counsel needs to be instructed?
Similarly, I shall always give Counsel the respect that where they advise a client to plead guilty in the face of previous advice to fight the case that they are doing so for all the right reasons.
Can’t we respect each other’s judgement?
Andrew
I agree with Dan Bunting. One might think that indeed the Tax Bar would be a good place to start for an additional reason. The Bar Mutual premium is far higher for non-Crown Revenue work. That is based on risk. The risk must be of a liability payout due to professional negligence. If there is a higher risk in costs of professional negligence then clearly the Tax Bar needs a QASA type system far more than the Criminal Bar, who pay a lower premium. So why does QASA start with us? That it does is inexplicable by reference to a proper quality assurance system.
Oh and the consultant analogy is wide of the mark. Doctors are required to revalidate their licence to practice every 5 years. It is a base level of competency. It does not indicate the level at which they are competent. It does not stop a consultant still being a consultant. It stops bad doctors still being doctors. So if a consultant was only fit to put the stitches in but not competent to do the operation they would cease being a doctor, not simply be stripped of their consultant title. Of course the GMC could introduce Stitch Only Surgeons….on second thoughts that would be daft wouldn’t it?
Jaime,
In my more sarcastic moments – I confess, I occasionally succumb – I too have deployed lampoon of this nature: garden-wall-only architects, fillings-only dentists, etc. Cash prizes (not) for more creative suggestions, please! Post on Twitter: #POAs?WhatNext? Lets get trending!
Ian West.
Take off only pilots
May be worth remembering that in February 2012 LJ Moses (no less) explained why QASA is wrong in principle.
In his lecture to the South Eastern circuit he warned that plans to assess the court performance of advocates will turn trials into ‘job applications’ and boost appeals by convicted criminals.
‘Do we really want a generation of criminal trial advocates who go into the court with the intention of pleasing the judge?’ he asked
Does anyone on here disagrees with Moses LJ’s principled objection to QASA?
Full Ebsworth lecture at
http://www.judiciary.gov.uk/media/speeches/2012/lj-moses-speech-ebsworth-lecture-13022012
Andrew Bishop
Don’t disagree, exactly, but…the sceptic in me (which is most of me, actually) wonders whether Moses LJ’s well-reasoned and, on the face of it, highly principled, argument doesn’t have just a tweeny-weeny bit of “Oh, no. not another bloody form to fill in. I have to get in to work early enough (ahem!) as it is…” (Remember the judges’ refusal even to provide references for the CPS Panels Scheme?)
In the CBA’s alternative to QASA, judges would not be required to undertake monitoring of trials yet to be conducted. Like the CPS Panels scheme, accreditation would be ex post facto, and, importantly, not in the gift of the regulators, but the body who is the actual consumer of our services when we defend – the LSC. Why not EPF? The financial advisers say that past performance is no guarantee of future performance, but where barristers are concerned, it generally is. As with the CPS scheme, applicants could get referees from others, not just judges. Giving the job of accreditation to a body that actually cares about the quality of service it pays for, rather than to an unnecessary overpaid faceless technocrat, ought to mean that the process does actually deliver higher standards, which is, after all, what its supposed to be all about (but presently isn’t).
Read all about it in the CBA’s Response to QASA/4.
Ian West.
I totally agree. And having to please the Judge would necessitate a change to our most fundamental code of conduct, namely, acting without fear or favour. Does anyone really think it requires a caveat of ‘except in order to please the judge for assessment purposes’.
Agree with pretty much what everyone has said above. Particularly like the suggestion of Howard Watkinson. The purpose of the Bar Council is sometimes hard to understand.
Patricia – thank you very much for posting, appreciate you’re sticking your head in the lions den.
One question – if QASA is important to regulate the profession and not linked with funding, why start with criminal advocacy?
Would it not be much more sensible to start with a group such as the Tax Bar where there are far fewer practitioners (and Judges) to develop the scheme and iron out any problems before rolling it out across the whole profession?
“…try justifying to a lay person any other approach, given that, for example, a consultant surgeon is still subject to appraisal despite having been appointed at that senior level. It’s a quality scheme to safeguard the public – it is not a methodology for determining who gets paid what.”
Try justifying to a lay person that because their consultant surgeon did not do publically funded work for the NHS, and only took private patients, that he or she fell outside of the “quality scheme to safeguard the public.” The public would, rightly, be outraged. If QASA was really “a quality scheme to safeguard the public” it would extend to the entirety of the Bar, just as there are no consultant surgeons that fall outwith a scheme for appraisal. That we are now in the era of direct access strengthens the point.
QASA is a nonsense. It is about time the BSB got back in touch with the profession. Perhaps we should be sending our optional £100 (or whatever it might be) fee lumped on top of the practising certificate to a properly representative body, the CBA.
Just a quick look at the minutes of Bar Council meetings reveals the following two quotes from Baroness Deech. I was present at the March meeting and recall very well that Baroness Deech appreciated that POA were in direct contrast to the stated intentions of QASA and contrary to the interests of quality in advocacy and justice.
“D took on board views from those at the meeting who said they did not wish to engage in a process that included plea-only advocates. RD emphasised that the principle of one scheme for all was one that the BSB would argue for forcefully.” January 2012
“The issue of plea-only advocates (POAs) remains a sticking point and the BSB believes that anybody who advises a client should be able to see a case holistically, not just the early stages.” March 2012
I also recall that it was said the SRA were wedded to the idea of POA and that unless we agreed to that we may have some form of scheme imposed on us.
So I am quite satisified that the BSB do not truly believe that POA are an acceptable part of QASA. It is also apparent that the Criminal Bar have always objected to a scheme that includes POA so it is not scrutiny of our competence that concerns us, it is an unsatisfactory assessment of competency that concerns us.
Whenever regulatory or other restrictions or conditions on placed upon a profession it is always open to those who practice in that field to say “do you know what? This is just plain wrong, I have had enough and I don’t want to be regulated in this way.”
Well, do you know what? I really have had enough. Why should I play along with a scheme designed to protect the interest of those who are not competent in criminal advocacy to advise and represent people when their liberty is at stake? This is not self-interest. It is just right.
So, Jaime, The BSB are not just hypocrites, but revisionists also! They’ll be telling us they invented the wheel, next!
Ian West.
I object to being patronised by the BSB for all sorts of reasons but to confine myself to those that can be printed
1) The notion that if you are anti-QASA you are anti quality control is palpably absurd. QASA is a terrible scheme that does not stand alone; it must be stopped. I am all for getting rid of some of the utterly incompetent advocates that blight the courts; this scheme will not achieve that.
2) Is it a serious suggestion that the Criminal bar should choose, as its last stand, to fight the government over money? Their spin doctors have been poisoning the public on this topic for at least 15 years and it is an argument we are never going to win. It allows them to paint us as rich and greedy. We can’t fall for that again; it is astonishing to read the suggestion.
3. Once QASA is in, the other measures can and will surely follow. To see it as a stand alone is unspeakably naive, or willfully misleading. Look at what is happening. The repayment of private fees upon success is removed, ensuring that the Legal Aid market is the only show in town and preventing any solicitor from continuing in private practice. The cab rank rule is withdrawn ensuring that those forced in house are “fee earners” driven by fees not old fashioned qualities like loyalty and integrity. Tesco hire a cash cow and milk it to the max.
4. The likes of Tesco may be prepared to run the first few years at a loss to secure their market share. But what happens when they have driven away the competition – do the government expect them to sell their block contract at the same low price?
5. QASA is a cynical piece of opportunism by the government; the BSB and the Bar Council have somehow failed to grasp the true implications. As usual they appear to be dealing with the government as if you can trust and rely on what they say; experience must teach us that the opposite is true.
6. Those at the sharp end know what is happening. I hope that the BSB will reflect on its position; the Bar can have no faith in QASA or those who propose it.
I have posted this on Facebook, coupled with the following:
It matters if you are accused of something that you didn’t do,
It matters if someone you care about is falsely accused,
It matters if you are a victim,
It matters if you believe in Justice,
It matters if you are Barrister or Solicitor,
It matters if you care about Law,
It matters if you care about society,
In short, it matters.
Support us in our fight to prevent the destruction of the English Criminal Justice System.
Please repost or tweet or spread the word. Please.
Can we please make sure we spread this message ourselves too. Let’s make sure everyone we know, knows. And every robing room has details of this blog.
Thanks,
Michelle Harris
1 Pump Court, Temple.
I find it incredible that those who wish to promote QASA spout the argument that it will look like the Bar are trying to avoid a test of their quality. This is nonsense, the Bar has no problem with quality regulation, it is the current form that is so objectionable and feeds in to an underlying objective. We have to fight and fight hard together because if we do not fight it is the end! Say no to QASA!
Last time action was contemplated Tim Dutton Q.C. was outstanding, but not everyone was convinced. Max Hill Q.C. was a breath of fresh air when he became Chairman of the C.B.A., the first person since Tim to spell out forcefully to the public the problems faced by the Criminal Bar and the first since to galvanise us into action. His tough and uncompromising position with the government’s various transient representatives, who have shown themselves determined to destroy the Bar, was impressive and lit the fires of opposition, which must continue to burn. Thankfully, Michael Turner Q.C. and Ian West are continuing in the same vein.
I am a member of the South Eastern Circuit and have no intention of signing up to QASA or poaching work from other circuits. So far, I have found no-one else on the South Eastern Circuit who takes a different view.
After 2005, given recent developments, it is obvious that unless we stand together there will be no future and no independence. Those whom I know had doubts then, have none now.
Ian Foinette,
5, St. Andrew’s Hill,
EC4.
Ian, I agree that the Midland and Western Circuits must be confident that others will not come and take their work. It may be easy for us to say that from the further reaches of the North East, but everyone must surely be able to see that we’re in this together whether in London, Nottingham, Exeter, Cardiff or Middlesbrough….it’s coming our way, and those in the front line need our support. The Government as always believes that it can ‘divide and rule’. We spend our lives standing up for the little guy, it’s time to stand up for ourselves.
To declare my interest, I am the Vice Chair of the Bar Standards Board. How is opposing quality appraisal supposed to be in the public interest? I strongly believe in the ability of the Criminal Bar as a whole to demonstrate, through QASA, that it is everything it is cracked up to be. However, every profession can have some weak links (Simon Myerson QC rightly acknowledges that the Bar can’t maintain otherwise) and in this field they can potentially have a devastating impact. OCOF and BVT is a separate debate, which you’ll no doubt all engage with vigorously when the consultation opens. Opposing QASA won’t halt the MoJ if it does decide to go ahead. What deciding not to register will mean is simply that if you aren’t accredited you can’t take on work that’s covered by the QASA scheme, because you would be in breach of your code if you did so. From where I stand that looks like a suicide pact rather than a stance that could reasonably be expected to influence the development of government policy in this area. Opposing QASA might also result in MoJ putting in place its own appraisal process, in which case you have to ask yourself whether you think that will be an improvement on the scheme that has, after lengthy consideration of your responses, fierce debate and much negotiation, now been worked out. To anyone outside the Bar the argument about QASA being flawed because it includes PoAs smacks of self interest (as the comments from Andrew Bishop, above, show). The reality is that QASA will ensure everyone is assessed against the same criteria and on any view that’s a great step forward compared with the present position. Equally, individuals (whether solicitors or barristers) who are subject to professional duties should be capable of being trusted to allocate cases honestly but, if they do attempt to game the system, the Judge will have the power to second guess their allocation. Silks are within the scheme – again, try justifying to a lay person any other approach, given that, for example, a consultant surgeon is still subject to appraisal despite having been appointed at that senior level. It’s a quality scheme to safeguard the public – it is not a methodology for determining who gets paid what.Do you really think the public will be saying: good on the barristers for resisting having anyone assess whether they are any good? The debate you want to have is about the impact of funding and procurement decisions on the criminal justice system, so make that your focus and do what you do best – persuade.
Patricia
Thank you for your contribution. I am sure others will have plenty to say. For now, all I have to add is this.
For all the reasons that Ian West and Michael Turner QC have expressed so eloquently, we profoundly disagree with your assertion that there is no link between QASA and BVT.
You are simply wrong. That is what the MoJ would like the tabloids to print, so as to muddy the waters.
BVT and the corporates who will seek to benefit from QASA cannot operate without it.
It is only the disingenuous MOJ explanation for our resisting QASA that is unlikely to attract public support. Unlike them, we are fighting to expose the truth, rather than suppress it.
The public will support the message that we are trying to get across, because it is the truth, and it is right.
It is a pity that you appear to share the MOJ agenda rather than fighting for the profession that you have the unique privilege to regulate.
And by the way, would you be happy to publish the BSB response to the QASA consultation, so we can compare what you said then, with what you say now?
Patricia,
If you have read my blog, and the CBA’s Response to the fourth QASA consultation (to which there is a link in the piece, for ease of reference) you would know:
(a) why we say that the QASA scheme is a sham, and a fraud:
(b) that we not only support the idea of a quality assurance scheme which really works – and not just because it would win work back for the bar from HCAs – but because we agree that such a scheme – providing it works – would be in the public interest as well as our own: and, further,
(c) that we have proposed such a scheme – a properly structured taxonomy, drawing on the best elements of QASA, and the CPS Panels Scheme, which means that cases are only done by those who are competent to do them.
I regret to have to say that it does the BSB, supposedly an independent professional regulator, put in place by the Legal Services Act 2007 (LSA) to protect the interests of ‘the consumers of legal services’, no credit whatever to be cravenly doing the government’s bidding (via its ‘enforcer’, the LSB) in endorsing what is so patently a scheme designed to have precisely the opposite effect.
Let me take but one example to expose the extent to which the BSB has betrayed the principles which are meant to underpin its strategy and purpose: POAs. In my piece, I lampoon the concept, but there is a deadly serious point here. Please explain to me how it can be in the public interest, how it protects the interests of the consumer (in this case the accused) to embed in professional regulation the most blatant of conflicts of interest between the advocate and the ’consumer’ – the client. “I can represent you, and collect several hundreds or thousands of pounds, so long as you plead guilty. I advise you to plead guilty.”
Section 1 of the LSA enunciates and enshrines ‘the regulatory objectives’ and the professional principles. Those include (but are not limited to:)
– protecting and promoting the public interest, and those of consumers; and
– promoting the professional principles, which themselves include:
– that [lawyers] should act with independence and integrity;
– that lawyers should act in the best interests of their clients
Not to mention the various rules in the Bar Code of Conduct about conflicts of interest.
Please therefore explain to me how a scheme which creates a part-competent lawyer, and who will have to have conversations such as that described above, promotes these objectives. Of course, it does nothing of the sort. QASA with POAs in it is simply a matter of expediency. The solicitors wanted POAs, so they could cream off the advocates graduated fee by cherry-picking the easy guilty pleas.
The simple fact of the matter is that the BSB didn’t have the courage of its convictions (if it had any) in the ‘negotiations’ that took place in the JAG. The CBA told you in the autumn of 2011, when you came round the country doing the QASA roadshows, what our ‘bottom line’, non-negotiable, position was, and you ignored your brief. Principle was sacrificed on the altar of expediency.
And please don’t tell me that you didn’t walk away from the JAG because the price of failure to agree would be that the big, bad, LSB would have imposed something we’d like even less. I cannot help but bring to mind the scene in ‘Life of Brian’ where John Cleese tells a man about to be stoned to death that he’s only making it worse by uttering the word ‘Jehovah’. I cannot do better than to repeat the reply he received: “Worse. How could it be worse? Jehovah, Jehovah!”
I regret to have to inform you that the perception of the troops in the trenches is (and not just because of POAs) that the BSB sold the criminal bar down the river over QASA. And barristers really resent paying £1,000 a year for the privilege. To be told by you that my opposition to QASA is self-interest is, in my opinion, nothing short of breathtaking hypocrisy. I have principles, and I adhere to them. Would that the BSB did likewise. I have grown accustomed to having lies peddled about me by the government spin machine. The fact that I am now being falsely accused by my own regulator of being self-interested, or complacent (or both) merely confirms, in my eyes, the extent of your betrayal. You have spent too long talking to government and not enough time listening to the profession you are supposed to be regulating.
One last point. Your assertion that QASA is not about ‘a methodology for determining who gets paid what’ shows (a) your naivety, and (b) the extent to which you have become Attack Dog’s poodle, peddling the MoJ line against your constituents. In fact QASA, and the inclusion of silks as ‘level 4/QC’ is precisely about Grayling’s agenda – of which he makes no secret – that the taxpayer shouldn’t have to pay for ‘a Rolls-Royce service for criminals’ (there’s that assumption again). He regards QASA as a minimum threshold of quality, as a backstop for the cheap advocates (and solicitors) in his brave new world. That is a battle we will have to fight with government, but it is none of your business.
So, please do not lecture the criminal bar. Before you accuse us of self-interest, take a good look in the mirror.
Ian West.
Patricia,
I cannot possibly improve on the responses either from Ian, or from Michael. What I can do is tell you that your assertion that BVT/OCOF are “a separate debate” has already been fundamentally undermined to me, a few months ago, by a conversation with a barrister member of the BSB. En route, he was asking me what I thought of the proposals for QASA. I indicated that I was not impressed. He told me that QASA was “the future” and that it would inevitably result in forcing barristers into the employment of vast firms (he was too coy to mention who they might be, but I think that particular ship has already sailed), and that we could look forward to the paradox of – and I paraphrase here, but accurately – the Bar being saved by its own destruction. That remark remains as disturbing to me now as it was then.
And, incidentally, Patricia, we have never enjoyed much public support. Those who have ostensibly represented our interests have never seen fit to spend too much of their time or our money attempting to educate the British public about the critical functions we perform, the protections we provide or the staggeringly high standards of conduct we adhere to. So, I fear, your attempt to persuade me that I am on the verge of frittering away the gigantic trust-fund of cheerleading from the press and the public is every bit as unsuccessful as your attempt to persuade me what your colleague has already confirmed is quite untrue.
Patricia,
I fully agree with the eloquent responses from Ian West and Sarah Vine. The BSB is out of touch with the profession.
Jane Waugh
Patricia
I do not know you and I accept that you probably mean well, but, please listen to those at the coal face and who have experience of prosecuting dangerous offenders and defending those who are wrongly accused. Whilst there is obviously an element of self interest in our objections there are very few people who went into, or who remain at, the criminal bar because they are selfish incompetent money grabbers.
I assume from its very title that the purpose of the BSB is to maintain standards at the Bar. This has been achieved over many years, nay centuries, without the requirement for criminal barristers to obtain their advocacy tick despite being on public view pretty much every time they appear in court.
What has changed?
If QASA has nothing to do with issues such as BVT (and what is the true definition of value in this context) why is it being applied only to those who seek to appear in criminal courts and therefore are publicly funded? If the BSB are seeking to uphold the highest of standards why is it not being applied to the profession as a whole? Surely those funding privately paid litigation in the commercial sector or wherever have even more right to know that the vast sums of hard earned money they are paying out are going to someone who is competent to fight their case? Would the answer be that the solicitors know who to instruct and therefore their competence has already been proved by performance? Funnily we had a similar system at the criminal bar, a system that you and government appear to deem to be inadequate.
The criminal bar could and would have no difficulty with a QASA which was necessary and robust. The sad fact is that the rough end of the profession where I reside has no faith in the requirement for, the purpose behind, nor the integrity of the currently proposed QASA.
As far as the integrity of the scheme is concerned let me give you an example. I know the Bar appears to bang on about non-trial advocates but taking it too its logical conclusion, a POA/NTA could mitigate in a multiple rape plea or a murder, either of which could involve complicated psychiatric issues but is not deemed competent to defend the most basic shoplifting trial. How is that maintaining the standards of advocacy?
Why does the BSB not do what it purports to say on the tin, that is really do something that promotes the highest standards of advocacy by supporting the Bar rather than becoming the government’s poodle and treating us like unruly and untrustworthy children. You are the regulator, you should be telling the government “we are quite capable of regulating standards, we have done so in the past and will continue to do so without the necessity for this sham scheme”.
Stephen,
A minor point of information. The term ‘Best Value Tendering’ (BVT) is a recent re-branding by government of what started life, and endured for years in the lingo as, Price-Competitive Tendering (PCT). Spotted the subtle shift of emphasis there? Of course you have. PCT sounds too much like “Never mind the quality, just give us your lowest price” Best VALUE tendering allows the concept to be sold to the public as incorporating some element of quality threshold, even if not very much. A bit like QASA, in fact!
Ian West.
Will next years BSB subscription be set at 30 pieces of silver?
And then there’s this, from Vince Ward, which sums up,what so many CBA members think about “delicate negotiations” conducted on our behalf. But then what do we of Crime know who only Crime know? (Sorry Mr. Kipling)
I have today written to my local MP in terms similar to the draft letter provided in the latest “Monday Message” from the CBA and I urge everyone else to do the same. Also in the message is a link to a plea from the Chairman of the Bar. That plea urges us to be patient and to trust that the Bar Council are representing us adequately in “behind the scenes” discussions. The problem with that plea is that they have made it before and the result of their contribution to those “behind the scenes” discussions is that POA and “external institutional assessment” remain on the table as part of QASA. I don’t trust their ability to deliver results which are in the public interest from those “behind the scenes” discussions.