Well at least the Vice Chair has had the courage and decency to respond to us on our own Blog. Baroness Deech however, decided to go to the legal press instead.
Neil Rose of @legalfutures has kindly consented to our posting a link to his blog with the “exclusive” interview that Baroness Deech afforded him.
You will find it here.
You will also find his article on Patricia Robertson QC’s intervention here which as you will see is lifted from our own blog and its responses.
We wanted to give you the opportunity to air your views on what both Chair and Vice Chair of the BSB have had to say about your “strident” views.
Please DO be noisy. Your voice IS being heard. That “noisy minority” has now been responsible for over 30,000 views of this blog. Do the maths!
Added below to get things started is the voice of yet another of those pesky silks who simply wont get back in their box and bow to the expertise and vast experience of Criminal Practice enjoyed by both Chair and Vice Chair to whom we owe such a debt of gratitude.
Simon Myerson QC writes:
I am extremely sad that this piece has been written in the way it has. The reference to a noisy minority with a poor understanding of QASA is not simply stone cold wrong – it is tone deaf to the very real concerns of people with families and commitments, entered into at a time when the risk, which is now so apparent, was undreamed of. Our regulator should not have written it, because it sets the BSB against the profession. From where I am standing the opposition to QASA is a majority view and QASA is very well understood. As the article makes clear, the BSB isn’t going to start its road shows until June. In those circumstances, the best advice I could give is to listen to the views being expressed, instead of trying to belittle them.
The article is also full of inconsistencies and errors. Here are a few:
– The scheme is now finalised or virtually finalised. I do not therefore understand why the response to the final consultation has not been published. Quite a lot of what is now being said does not reflect the profession’s understanding of the BSB’s initial position. Not only are we entitled to know what has changed and why, but a regulator that wanted to maintain the profession’s confidence in it would provide this information in any event.
– There is an implicit admission that some scheme is necessary to implement OCOF and BVT. That being so it is an obvious question as to whether such a scheme should be the best the regulator can get, or whether an imposed scheme would demonstrate that the issue is cost not quality. That is actually a <i>debate</i>. We haven’t had it. Instead, the article flips between saying why QASA is wonderful and warning us that it’s better than the alternative. If the author of the article doesn’t come down firmly on one side, then how can we know?
– How on earth can it be simultaneously asserted that the AG has said that QASA and reductions to fees are not linked and (within 4 lines) that an alternative scheme would “be tied to a government austerity measure policy”? If the latter is true then Baroness Deech has both accused the AG of lying and told us that our Regulator has not disclosed the real basis for agreeing this scheme until now. For the record, I don’t believe that is what is being said: instead it simply shows that the thinking is muddy.
– QASA doesn’t properly assess quality. That is because it imposes a bizarre and irrational cut off: namely what a client decides to do about plea at a random point in time, and then assumes that nothing has to be done but mitigate. That simply is not what happens.
– The point about allocation attributes to QASA a quality it does not claim to possess, namely impermeable barriers. There are bound to be cases that are equally justifiable as the top of band 2 and the bottom of band 3. Baroness Deech concedes exactly that when she talks about Silks being at the top of Band 4.
– I am enormously doubtful about judicial enthusiasm for this. I am sure the Council of Circuit Judges has felt bound to accept its role. That is not the same thing as saying they approve the scheme and it is not the same thing as saying that Judges will focus on the assessment in the way that we – and they – would wish. The question here is whether the assessment detracts from the Judge’s actual job – to run the trial, ensure fairness and try and achieve justice. As a sitter I can say that those tasks are pretty full time. The very poor advocates and the very good advocates stand out. The rest are just allowing the job to be done. Objective standards will help but we have objective standards for sentencing as well and it does not (and nor should it) impose uniformity because no two cases are identical.
– Formal Quality Assessment is not something we must have simply because everyone else has it. That suggestion betrays a mindset that looks mainly at formalities. The question is how to ensure that quality assessment is assessing quality as opposed to compliance. Most professions have not answered this question adequately – as the professionals themselves will tell you. The Bar has had that experience already with Barmark and Quality Mark. If the current scheme does not assess quality properly then all the BSB is saying is “We must have something. This is something. Therefore we must have this”. The falsity of that syllogism would be apparent to the dimmest burglar.
Two further points. First, having read the Q&A’s I am cross. I answered the questionnaire on quality. I went to the trouble of emailing the BSB on 14th February 2012 to say that it did not distinguish between the Bar and HCA’s and that there was, therefore a lacuna. The Q&As make the point that over half the respondents to that survey frequently encountered advocates acting beyond competence. That is not an argument for quality control of the Bar and it is wholly disingenuous to suggest that it is. Instead, it demonstrates that the research, which I helped to fund, was inadequate and incomplete. I believe in quality assessment but lousy points made on the basis of incomplete evidence only diminish an argument. The proper response to that finding was to ask whether this was a barrister issue and, if so, in what percentage of cases.
Secondly, I regard myself as being relatively well informed about QASA having drafted my Circuit’s response to it. The standards document is poor. For example, legal submissions demand coherence at level 2 (I don’t think however that level 1demands incoherence), attractiveness at level 3 (and how often have those of us who do this for a living had the luxury of advancing only attractive arguments?) and identification of the best arguments at level 4 (which I regard as a level 1 task). This doesn’t show that the JAG are idiots. It shows that the task is actually extremely difficult and needs far more work. It also needs a trial period followed by input from Judges and practitioners. Instead we are offered a two year review. Let’s say the reviewers have the humility to identify a dog’s breakfast if that’s what it is – what then happens to the people adversely affected by 2 years of cock-up. Is the BSB going to compensate them? I know this can be dismissed as an argument for time wasting but I expect my Regulator to take my word for it that it is not: it is an argument for quality assurance.
These issues are so obvious that the dismissal of opposition makes the BSB sound as if it is entrenched for the defence of its own collective ego. If that is not the position the tone and content of the article is a gigantic error of judgement. I ask the BSB – on whose committees I sit – to reconsider its approach. If it is really suggesting that we are better off with the devil we know then it MUST do something to demonstrate that. This article, patently, is not it.