We have posted here, a guest blog from two Law Students Eloisa Tovee and Joseph Sherlock, who blog via their Twitter account @LegalHalfHour
They were in the audience at QMC on 13th March, listening to a talk on the Independence of the Prosecution process.
The Principal Speaker was Dominic Grieve QC MP, Attorney General, and ex officio head of the Bar.
When questions were invited from the floor, they asked the Attorney if BVT or OCOF could still be implemented if the Bar successfully resisted the introduction of QASA in its present form.
Their Blog is an account of what follows.
We invite your comments, if indeed you are one of the hundreds or even thousands of Criminal Barristers who oppose QASA, to the suggestion from the leader of your profession, that you are all fools.
You may also wish to look at the Guardian’s account here of his announcement of his plans to go back to the days when Police Officers prosecuted cases in Magistrates Courts.
We are unable to find any mention of his intention to submit Police advocates to any quality assessment process.
“The Criminal Bar would be foolish to resist QASA” was the message delivered by the Attorney General Dominic Grieve tonight, 13th March 2013. He said that to do so would give the impression that the bar wished to avoid scrutiny. QASA, said the AG, was about ensuring quality and was unrelated to the issue of ‘Best Value Tendering’ and all that such practices would mean for the independent criminal bar.
Extraordinarily these comments came at an event concerning the independence of prosecutors. Mr Grieve spoke about the importance of the CPS being separated from investigators, being unburdened by the financial pressures that privatisation would bring, and being as free from political pressure as possible. The Attorney General suggested that commercial pressures would corrupt the work of the CPS.
Luckily the DPP, who was watching from the audience, had no cause to be embarrassed as the AG didn’t mention that such commercial pressure clearly already affects the prosecution service as is evident from the leaked ‘ticks and stars’ email of a few weeks ago. Despite these words in favour of independence for the CPS, when asked to comment on the fears of the Criminal Bar Association that QASA is a step on the road to such pressure being exerted against the independent bar, he described them as ‘foolish’. He further said that he saw QASA and BVT as separate issues and said that to comment further would be to encroach into the portfolio of the Lord Chancellor and Justice Secretary, Chris Grayling.
In conversation after the main event had finished, the AG acknowledged that the government had to ensure that people had access to representation for their defence but then stated that this had to be provided with an eye on the costs. He failed to say that the first duty of the government was to ensure that the representation was of the highest standard possible. He spoke of the independent bar as a commercial enterprise and when discussing Legal Aid funding was quick to point to the economic position of the country, stating that even the CPS had to cut its budget by more than 20 percent. He did not mention that the CPS has to do this because the government of which he is a member has decided that they must, and when the relatively minuscule size of the legal aid budget was pointed out he simply said that no department was immune and that all the costs add up.
Concerning the scrutiny the Bar are under the AG defended the necessity of the QASA by saying that at the moment barristers are only judged by their successes and failures. He didn’t say what additional metric the QASA would introduce.
The word which is key here is obviously ‘foolish’. Already this point has been taken up by the CBA and many barristers, lawyers and commentators. It can only mean three things either:
• the Attorney General thinks that barristers are fools to think that QASA will be a disaster for the profession or
• he thinks that this fear is reasonable but that they are fools to resist.
• The third option is that he thinks both ideas are absurd and that members of the profession which he leads are fools twice over.
UPDATE
Well to be fair to him, the AG has responded, and quickly too. As luck would have it, our intrepid friends from Legal Cheek, in the shape of Kevin Poulter, conducted a filmed interview with him the very next morning here, which they have been kind enough to allow us to link to.
That’s the good news. Sadly it seems both from his response this morning, taken together with his comments last night, as though the Attorney genuinely has not understood either the full implications of #QASA and its inextricable links with #OCOF #BVT and certainly has not understood the CBA’s response. See Ian West’s Twelve Questions.
He suggests there will be no public support for the arguments the Bar put forward. he doesn’t say which arguments. Our arguments relate solely to the preservation of an independent referral bar and a viable Criminal Justice System. Hard to see how THAT would not appeal to public opinion. hence we ask, does he actually know what we have been arguing, or does he think we are saying what Grayling would have the public think we are saying?
This has nothing to do with fees. We already lost that one a while back.
And secondly, his observation that there is no link between #QASA and #BVT. if he doesn’t realise it, then Grayling certainly does, hence the latter’s decision suddenly to advance the consultation and start dates when he realised that the #NoToQASA campaign was gaining momentum.
Without #QASA to provide the fig leaf of grading essential to a Stobart type operation, ABS or LDP, #QASA cannot operate. It really is as simple as that. When the AG batted away the question last night, suggesting it was beyond his brief, he really revealed his ignorance of what the Justice Secretary is up to. Or so we prefer to believe.
All further comments are welcome, including any from the Bar Council?!
criminalbarassociation 
Well he would say that wouldn’t he, and so the spin begins. What’s foolish about standing up against the systematic dismantling of the criminal justice system. This administration cares nothing for quality of representation. Their undeclared remit is to drive costs down ever further, the fact that innocent people are more likely to be convicted or that the guilty escape conviction, well just collateral damage as far as they are concerned. One need look no further than what they’ve done to the interpreters, what used to be a first rate service operated by professionally qualified people ensuring the smooth running of the court system has been replaced by the ‘BVT’ winner, who more often than not sends no one at all or someone who cannot speak the right language. Those who do turn up and can speak the right language, a rare combination nowadays, have received no training whatsoever and are incapable of doing the job. Result, 2 trials at Manchester Crown Court last year involving Chinese speakers, both estimated to last 5 weeks, both took 8-9 weeks because of interpreter problems leading to wasted days. So much for value!
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The Civil Bar is at times supine about QASA. But I have not permitted my PABA members to ignore what is going on.The capituation of the Criminal Bar of today will be the problem of the Civil Bar of tomorrow.
I shudder at the thought of having to ask a Judge to approve of my advocacy. I act for one of the most reviled categories of litigant – Barristers !! I defend fellow Barristers prosecuted by the BSB in disciplinary cases. On a number of recent occasions, I have had to criticise the BSB in front of senior Judges. To some, this is sacrilegious.
This is lonely and difficult work. The thought that I might have to ask such a Judge to approve of my advocacy is rather like asking the enemy trenches to give me a high grade for marksmanship. It is utterly absurd – and constitutionally dangerous.
My job involves fearless and at times empassioned advocacy for the maligned (and traumatised) Barrister victims of rampant regulation of the Bar. If I am required to fill in a QASA form I shall tear it up and produce it to the Judge in little pieces. I have offered Michael Turner and the Criminal Bar Association the full support and friendship of the direct access Bar.
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Surely the litmus test of QASA/OCOF/BVT is whether it would be welcomed if the boot were on the other foot?
Would MPs submit to QASA, where their performance is assessed by, say, the Speaker? On how many times they voted? Participated in debate? How well they performed in debate or select committee?
The answer would surely be “we are in the public eye, televised, our performance is monitored daily. If we are no good, we are voted out at the next election.” I may not agree with the Speaker, and it is in the interests of democracy that I be allowed to represent my constituents without fear or favour. The Bar do not (yet) do their work in secret, they are monitored daily in public. They fear no-one.
Would MPs submit to OCOF?
One fee (inclusive of expenses) for the duration of the parliamentary term? The cry would surely be that this would deter the best candidates and leave entry to parliament open only to those with a private income, with the concomitent reduction in diversity and meritocracy.
After OCOF, MPs submit to BVT?
The taxpayer would then get “value for money” by prospective parliamentary candidates participating in a Dutch auction to determine who would do it for the least money. Only those prepared to do the job properly at sub-minimum wage levels would apply; alternatively, those funded by party or corporations or unions with a vested interest in how the MP voted? This would leave MPs as puppets on a string and be an attack on the fundamentals of democracy. It is an intolerable thought.
Now think on, dear Attorney..
Surely any right minded MP would be foolish to resist such a scheme.
I’ll tell you what is foolish. It is foolish to turn the clock back 30 years and hand prosecutions to the police. Why is that foolish? Well it is just shifting the burden from one publicly funded overstretched body to another. It is also handing the prosecution of cases that can impact upon an individual’s economic and social standing to the police. The police will lack the training, the support and the INDEPENDENCE to do so effectively and fairly. If one police officer does not realise the gap in the evidence who says the presenting police officer will? Only one person will think this is not foolish and that is Nick Freeman.
I am personally offended to be described as foolish to oppose QASA when the AG seems unable to deal with the the basis of my objection. I am not afraid of scrutiny. I have spent 19 years under the scrutiny of the judiciary, my clients, instructing solicitors and the CPS. I advocate scrutiny. I have survived the scrutiny of the free market. What I fear is corner-cutting, inadequacy, cartels and people for whom their only answer to criticism is to call me a fool.