We are “THE STRIDENT VOICE OF A NOISY MINORITY” BARONESS RUTH DEECH, CHAIR OF THE BAR STANDARDS BOARD

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. 

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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.

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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. 

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Start the bilge pumps or abandon ship: is there a future at the Criminal Bar for those just starting out? By James Jackson, third-six pupil barrister.

We are always keen to publish the views of ALL levels of the profession. This is a very down to earth and perceptive account of the realities of life as a pupil and their prospects of a career at the Criminal Bar, or otherwise.

Read it, and please do share it.

AND THEN TELL US WHAT YOU THINK!

Having been called to the Bar in 2009, I was delighted to finally obtain pupillage in 2010, to begin in September 2011. I had been volunteering for free for the preceding 12 months in various places to improve my CV and gain experience, in a situation where the success rate in obtaining pupillage is approximately one out of every four students. I was fortunate to do pupillage at an excellent Chambers where, although we had to work very hard, we had the opportunity for our guaranteed earnings/award over the course of the year to amount to enough money to survive in London (about £20k or slightly over). A mandatory pupillage award and guaranteed earnings can be an expensive and/or intimidating proposition for any criminal law Chambers.

However prior to pupillage, as well as working for free I had paid out tens of thousands of pounds to take the Graduate Diploma in Law and Bar Vocational Course. The latter of these was particularly expensive and of limited value: personally I’d much rather have foregone such an expensive year and undertaken training with genuine practitioners without cost to them, however it seems the BSB know better and would rather that large numbers of hapless students sink vast sums into private entities that don’t benefit the rest of the Bar at all, save for providing shiny glass buildings to walk past every now and then. (This was in addition to already accruing the standard amount of university student debt.)

Going into a job that took so much effort to get into and demanded the majority of one’s waking hours, (and quite a few of the supposedly non waking ones) after fees, books, travel etc. and discounting money I’ll probably never see, I yielded a return in the first year on my feet of roughly £16-17k. About equivalent to a basic cleaner’s salary and lower than entry level jobs in nursing, local government or the police, never mind doctors or graduate schemes, without a pension/annual leave/sick pay etc.

I was fortunate to get a third six at a very successful Chambers with a large amount of quality work. Therefore I have been fairly privileged in my passage so far through becoming a criminal barrister. My earnings might go up slightly, even factoring in the inevitable late and non-payments that mean writing off a certain amount of all the work I do. Being generous, I might get up to £20-22k in the next year – that’s not including accounting for extra expenses that come with being a barrister such as books, shirts, suits, travel that’s not realistically reclaimable, etc.

In addition, as we all know, being a criminal barrister comes with a health warning; the work-load often consists of cases or clients that are troublesome, tricky, difficult or not cost effective for one reason or another – as we’ve seen with the recent North-London CPS circular: – except it’s not just limited to prosecution. Not that I have a problem with that, it’s all part of the job, especially when you’re at the bottom trying to work your way up the ladder.

However the usual mantra in days gone by has been that if you can just stick with it, in a few years things will ease up a bit, and you’ll start earning enough to be comfortable – although you’re never going to keep up with your mates who went into shipping and commercial law but who cares that’s dead boring anyway…

Unfortunately, whilst that might have been true for someone 10 years ago, it’s not true today. Already within the last decade many criminal barristers have seen fees slashed, and at the junior end the problem is acute. Hearings in the magistrates’ court are usually in the £50-80 range and Crown Court work is increasingly scarce, with fees going down across the board and delays in payment longer than ever. Many of us at the bottom end are saddled with student debt, which when added to rising living costs, particularly on the South Eastern Circuit with the extortionate cost of living near London, means the job is simply not economically viable.

That’s why I live with my parents who still support me. Most of the pupils I know also receive help from their parents, or have savings from a previous job, or have some other means of supporting themselves. Of the ones I know who don’t have any of those luxuries, most have either moved sideways into civil practice, gone in-house, or done something else altogether.

I do not come from a rich family (both my parents worked in the public sector) I did not go to private school and come from a diverse, non-exclusive background. None of this has been a problem at the Criminal Bar, which is actually very inclusive and not particularly bothered about who you are and where you come from in my experience, though that doesn’t seem to be the perception in the general public, which is a shame.

I mention this because I did not join the Criminal Bar for the money (obviously) – I went into the Criminal Bar because I believe in it – as clichéd as that may sound. However I also did not join it to become a martyr. I want to be able to live a decent life, given the sacrifices we all make in this line of work – (don’t like doing three child rape cases in a row? Get over it – you’ll have a mortgage to pay, and a cab rank rule to abide by…). I’m also not going to be able to rely on parental support forever, and at 27 don’t want to. I’m at an age where I’m still just about young enough to go into something else, but it’s rapidly approaching decision time, and I’m nowhere near rich enough to be sentimental about the choice. I haven’t been in the profession long enough to remember how it is used to be. All I know is, if things keep going down the same road, the new generation of bright, enthusiastic idealists aren’t going to make it into middle age and beyond at the criminal Bar. Certainly if the ship really is sinking, I’d rather jump before I’m pushed.

Attorney General, and Head of the Bar of England and Wales says Barristers are “Foolish” to resist QASA.

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?!

Does the Bar represent good value for money to the taxpayer? By Marc Brown, Barrister at 2 Pump Court.

I have been a barrister specialising in publicly funded criminal work for eleven years.   Throughout my career I have both prosecuted and defended.  Virtually everything I have earned has been paid for by the state.

In recent times I have become very angry at the suggestions in the press that legal aid lawyers earn a fortune.  I have been prompted to write this article by a letter in The Times on Saturday in which the ill-informed author expressed, as a fact, the wholly baseless assertion that Legal Aid lawyers earn at least £125 per hour.  We don’t.  I wanted to write this article in the hope that those who are not in the profession, in particular our uniquely unqualified head, the Lord Chancellor, would see it and be better informed of the true position.

There is an undercurrent flowing against access to justice.  Methodically and quite deliberately, the Government is dismantling the legal aid system.   The populist press is aiding them in this.  The poorest and most vulnerable in society will lose.  Victims will lose.  The rule of law will lose.  Democracy will lose.  Society will be all the poorer for it.

Because of the way all of this is being presented, society at large doesn’t really understand what is happening.  By the time that the first serious miscarriages of justice occur, it will be too late.

The letter written in Saturday’s Times provides an example of just how misinformed the general public is.

I think it is time for an honest debate about legal aid remuneration for both the solicitors profession and the bar.  I am tired of the now familiar routine of the MOJ releasing the supposedly highest earning legal aid barrister’s income just before another round of cuts is announced.  Helped along in the propaganda campaign by the Daily Mail publishing pictures of those individuals in their full-bottomed wigs.

We all know that there are a few individuals that do very well out of legal aid defence work.  Those individuals work extremely hard, on the most complex and important cases.  They are at the very top of their game.  We know that those figures do not reflect earnings, they reflect turnover, and may relate to several years work paid up in one year.

So what then is the truth?  The truth is that the vast majority of us earn a modest income.  In order to earn that income we generally work exceptionally hard. In my experience I can say that in the past year I have worked well over 60 hours a week.  Those who know me well, know that the past 5 months of my life have been occupied by a case that has seen me working 17 hour days consistently.

The fee income we receive for the work we do reflects turnover.  Each one of us is a micro business. At the independent Bar we are all self employed, and have overheads in order to run the business.  Typically those overheads are about a third of fee income.  The remainder is net profit; which is analogous to salary, except there is no pension, no healthcare, no holiday pay, and no employment protection.

I am prepared to let the public know what a busy junior barrister of eleven years call earns.

I am not “minted”.    I live in a modest but comfortable semi detached house in Essex.  I don’t drive a Bentley Continental; I have a Renault grand scenic.  My wife is an assistant headteacher.  Between us we live a comfortable middle class existence.   Every year we take a holiday, but we don’t spend it living the high life in fancy hotels, we tow a trailer tent round Europe, because that’s what we like to do.  Our children attend the local state school.

In terms of work, I am generally in court every day either conducting trials for the prosecution or defence, or appearing on the whole range of other hearings that occur in the Crown court. When I get home of an evening I will generally spend between seven o’ clock and midnight working on upcoming cases or the next day.  Frequently because of the way the warned list system in the Crown court works I will be preparing a case for trial the following day in circumstances where I was given the brief at about 6pm.

My last set of accounts declared a net profit of about £68,000. That figure is broadly consistent with the preceding two years. By comparison a GP earns between £53,000 and £81,000 (but gets a pension etc).   I think £68,000 is a reasonable and fair income for the work I do.   If I divide that figure over the hours that I work I end up with an hourly rate of about £23 per hour.  I have no complaints about my income if I am able to sustain it.  I do have a concern that it will not keep up with inflation as fees go down and the cost of living goes up.

The fact is some things are inherently costly but necessary to maintain a free and democratic society.  If the rule of law is to be upheld we need justice and justice is expensive.  Of course the state doesn’t pay my net income, it pays the fees from which my net income is derived.  It actually works out at about £33 per hour. The state can get my services for £33 per hour.  That, it seems to me, is pretty good value for money.  If I doubled it, it would still represent good value for money.  If I doubled it again, it would still be substantially less than lawyers undertaking commercial work would charge.

The Government wants to get rid of the criminal bar.  It wants to put criminal legal aid work out to tender to the lowest bidder.  The effect will be that the lowest bidder will get the work.  Quality will become irrelevant.  Large national firms or alternative business structures will get the contracts.  They will have to provide advocacy services at a fraction of the costs that are now paid.   The problem with this is that if the cost is driven down, there will come a point very quickly where there are insufficient people of even the barest competence to do the work.  We have seen this happen very recently with the provision of interpreter services to our courts.

People who train for a career in the law, do so because it is a fascinating career. Those people are generally amongst the brightest in our society.   People who choose criminal law know when they go into it that it will not earn them anything like the money their colleagues who go into corporate or commercial law will earn.    Lawyers who work in criminal law do it because it is a public service.  The problem is that a fascinating career in public service which doesn’t pay enough to sustain a modest standard of living is not a career that a sufficient number of people will chose.   It follows that if cost is driven down the work will end up being conducted by people who are not sufficiently competent to do it.

Why are talented lawyers needed within the criminal justice system?

I vividly remember my enthusiasm and passion for the work when I first started out.  I remember attending various Magistrates’ courts and conducting trials for very little money indeed.  Those of us who do the work know that’s how we all start out.  As time marches on, our clerks attempt to advance our careers by giving us trickier cases.  Solicitors with whom we have contact get to know us.  They see us in court, and before very long you begin to receive instructions in your own right.  It is a steady process, throughout which the skills required to conduct criminal advocacy are developed, the rules of evidence are learned, and good and sound judgment is obtained.

The bar code of conduct forbids us from taking cases that we are not competent to do, and so we only take the more serious or difficult cases when we have acquired the skills to do them well.  This way the system ensures that the any defendant is properly represented by someone competent to deal with his case.  This minimises abortive trials, successful appeals, and miscarriages of justice.

The same applies to prosecution work.  Any advocate conducting a trial should be competent to undertake the work.  Incompetent advocacy leads to guilty people being acquitted and innocent people being convicted.

So why should defendants be properly represented at a cost to the state?

The answer to this question can be expressed in one word.  Confidence.

If the public are to have any confidence in the system of justice operated by the state; it has to believe that the system works in ensuring the conviction of the guilty and the acquittal of the innocent.

As lawyers we have all been asked the question “How do you defend someone you believe to be guilty” and we all know the stock answer. If a person against whom the state brings a charge insists that he or she is not guilty, the state must prove that they are so.  That means that the evidence against that person has to be tested.  It means that the defendant’s version of events has to be put and considered and either accepted or rejected.  If that does not happen, and a defendant’s case is not properly examined, how do we know he is guilty?  If we are not sure that the people we are locking up are guilty people and that the people we are letting go free are the innocent ones; how can we have any confidence that the system convicts the guilty and acquits the innocent? It is, perhaps, symptomatic of how little understanding the general public have about the criminal law, and the importance of an independent bar, that none of us ever seem to be called upon to field the more troubling question “How do you prosecute someone you believe may be innocent?” 

Public confidence in the rule of law is an essential feature of a working democracy.   Competent talented lawyers are an integral and necessary part of the criminal justice system.  Without them the system would fail.  The independent criminal bar provides the vast majority of lawyers providing advocacy services in the criminal justice system at Crown court level.   I say that they represent good value to the taxpayer.  This Government should think long and hard about the destruction of the independent Bar because once it is gone, it will be gone forever.   It provides an excellent resource of talent.  It provides value for money.  It provides justice.

What price justice? Or should I say:  what price injustice, Mr Grayling?

“Twelve Things You Always Wanted to Know About QASA, OCOF and BVT, but were Afraid to Ask” A Guest Blog By Ian West

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…..

“A Shocking Lack of Understanding of the Justice System is Driving Dangerous Cuts.” A Guest Post From Karl Turner MP

The Criminal Bar has not, and will not forget the efforts of both the current and previous Governments to destroy our profession.

We are however most grateful for attempts by those in the current Parliament, to redress the balance and protect what remains from the annihilation that must surely come with OCOF/BVT and QASA.

One of the most prominent MP’s leading that fight is Karl Turner, MP for Hull East and a former practising Barrister himself. He is married to a Solicitor, so has a broad understanding of the issues we face.

He works tirelessly on our behalf, both in public and behind the scenes. 

His Circuit, the North Eastern, is one of our most active supporters. Others take note.

We are very happy to publish below, an article from Karl’s own Parliamentary website. It delivers a dire warning to those in Government who have little or no understanding of the damage to society that they threaten.

Or, as you can see from his exchange with Chris Grayling…. perhaps they do!

 

Further cuts to the legal aid system have been announced without any assessment of the last round of cuts. The Government has failed to understand the impact of the savage cuts to Civil legal aid following from the the Legal Aid, Punishment and Sentencing of Offenders Act 2012 (LASPO).  Despite this the Government is now driving cuts to Criminal legal aid.

It is deeply concerning that our Lord Chancellor, Rt Hon Chris Grayling MP has failed to learn lessons from previously failed attempts at introducing competitive tendering and in my view fails to appreciate that Best Value Tendering (BVT) in the Criminal Justice System will savagely erode access to a justice.

The privatisation of the Court Interpreting Services and the failure of the Criminal Defence Service direct should surely be a sign to slow this systematic drive to the cheapest tender providing, in my view, the worst value.

Our legal system is admired throughout the world and fairness in the Criminal Justice System is underpinned by legal aid. If factory firms simply focused on profit are allowed to take control of the justice system quality will decline and many small and extremely dedicated Solicitors providing publicly funded criminal representation will be swallowed up. Once they’ve gone they will not return.

Opening up the legal market to firms run by non-lawyers such as the haulage company Eddie Stobart or indeed the Co-Op is short sighted and will inevitably lead to smaller firms in places like Hull closing down for good. This can only deny the most vulnerable people in my constituency (and across the country) access to justice.

Another unintended consequence of BVT will be to close off the legal profession to under-represented groups such as ethnic minorities, women and people from moderate backgrounds like my own. The continual driving down of fees will ultimately price out many people from the profession.

My own nephew, Matthew will finish Bar School this year with crippling debts of more than £25,000. Many others in his position may reconsider a career in publicly funded law if they fear not being able to repay those debts.

I was not entirely convinced by the Lord Chancellor’s stance this week in the House of Commons lobby, when I challenged him on the issue of BVT. He tried to reassure me that the Co-Op was a very competent organisation that ran a very successful funeral business.

Although I have the utmost respect for the Co-Op’s funeral services and would not object to my wife instructing them to bury me, I would not instruct them to represent me on a charge of Murder.

I am not convinced that this example highlights a level of understanding of the criminal justice system that I expect from our Lord Chancellor.

Criminal lawyers already provide “best value” we must remember that fees paid to Criminal Barristers and Solicitors have remained static since the mid-1990s.

In 2010 Criminal Defence fees were cut by a whopping 13.5% and there were further reductions in 2011. Criminal prosecution fees were also cut substantially in 2012.

A whole raft of Civil law will of course also cease to be eligible for legal aid as a result of LASPO. This will be devastating on the most vulnerable people in my constituency of Hull East (and across the country) who will be forced to represent themselves in often procedurally and legally complicated cases. This will not represent a saving to the tax payer in the long run as cases will be slowed up in the Court system.

Amongst the Barristers that I completed Bar School with in 2004 most are earning less than at £30,000 at the Criminal Bar. It should be noted that from that they need to pay Chambers expenses (12% at my former set but as much as 20% at most others) and then deduct income tax. This represents a net income of less than £15,000 per year. So it’s clear that the Government are not going for the so called “fat cat lawyers” they like to describe from the dispatch box. They are savagely attacking junior Barristers and Solicitors that choose to practice publicly funded law.

In the Magistrates’ Court Barristers will be instructed on an average fee of between £50 to £100 for the day in Court. They will be required to pay for their own travel to and from Court and having diligently prepared their case and done the client proud with their skillful advocacy they will then have to wait for sometimes many months for the fee to come in.

In the Crown Court it doesn’t get much better, and I’ve known juniors return the brief to a senior member of Chambers (already at Court) because it is simply uneconomical to do the case.

There can only be one conclusion, the Government will find savings from the implementation of BVT but the question remains – what is the real cost to our society?

06, Mar, 2013

A SPEECH TO WOULD BE PUPILS SATURDAY By: Michael Turner QC, Chairman of the Criminal Bar Association

The Bar has a tremendous ability to tear itself apart. There is not a single speaker here today who would dream of charging a speakers fee for an event like this. Nor would they appear if the organisers were making a single penny piece. I do not intend to embarrass any of the contributors by listing their pro bono contribution to the Bar and to wider society over the years. Rather than aiming fire at those who seek to make a difference, the Bar needs to unite with its brothers and sisters in the solicitors profession and protect the rights of this country’s citizens from having a corner stone of its democracy stolen from it.  What I do want to do is give you an insight as to what you face from Government of whatever political persuasion.

In the past 3 years this Government has continued with a theme started by the last. It has taken millions out of the legal aid budget, the ostensible reason being to save the tax payer money. Given the devastating effect that this removal of funds has had on our system you would want to be pretty sure it is doing what the Government pretends. Sadly it has done no such thing.

It costs at a very conservative estimate £110 per minute to run a court room with a jury. This figure is now 10 years old and based on a two barrister case. That is £6,600 per hour, £52,800 per day £264,000 per week.  Delays that are so endemic in our system. Delays caused by a system of disclosure that is now broken almost beyond repair. I was invited to discuss with the Directors Office modification to the Criminal Procedure Rules.

I was present with Brain Altman QC (The Senior Treasury Counsel) and a senior solicitor. They informed us that it was their intention expand upon their system that only one lawyer would be tasked with understanding the non disclosed material in a given case. That lawyer would not be trial counsel and would invariably not be present during the trial. We pointed out that it those circumstances the Crown’s continuing duty of disclosure could never be met. Their response was to enquire whether we could suggest any modification to the Criminal Procedure Rules which would cure that situation. You can guess our response.

Delays caused by translators who cannot speak the language of the defendant provided by Applied Language Solutions, now bought out by Capita, a private company that employs translators without qualification or CRB check and who obtained the contract by falsely claiming they had reputed translators on their books when they did not. One journalist submitted two applications to this company one in his own name and one from his cat, the stated language being “ancient cat”.  He was not invited for an interview his cat was.

Delays caused by a partly privatised prison service which has cut so many corners to maximise its profit it has one van servicing five court centres. In the case I finished before the summer break, the privatised company charged with bringing the defendants to court GEO-AMY were so incapable of delivering the defendants to court on time, 4 whole days were wasted. The problem was only solved by making three of the defendants CAT A prisoners so that it was the prison service that took the responsibility.

Who picks up the tab for those delays, the tax payer of course, it is simply on another balance sheet that is hidden from the public glare. The reality is that the millions cut has saved the taxpayer not a brass farthing. Indeed it has almost certainly cost them more money than before. The Government is currently proposing to return half of all magistrates prosecutions to police officers. Some of us in this room are old enough to remember how disastrous that system was some 30 or so years ago, which led to the formation of the Crown Prosecution service.

Every time you scratch beneath the surface you find that the Governments cry of saving the tax payer money is false. G4S retains the contract for front of house court security. It has the contract for 60 months. Which is worth £175 million. It pays its employees £6.45 per hour, it receives on the other hand £11.49 per hour, per employee from the Court Service. That is a daily profit of £40.32 per employee. Its web site tells me it has 800 employees within the court service. The gross profit to G4 S over the life of that contract is a staggering £41,932,800. Can anyone sensibly argue that represents a saving to the taxpayer. Of course not. That figure itself is small beer for G4S who receive annually £759 million in respect of its contracts with Government. Watch closely to see how many civil servants and government ministers find themselves sitting on the board of G4S in retirement.

If money is not this Governments motivation, what is it that is causing them to devastate one of the best legal systems in the world. One that they are proud to promote abroad but destroy at home. To answer that question you must look at the other pieces of legislation and regulation that accompany the cuts introduced by this Government and the last.

The last Government effectively muzzled the judiciary, banning them from speaking in public on any topic other that through the Judicial Press Office or through pronouncement through the Lord Chief Justice. The effect of that has been to allow both the press and politicians to criticise the judiciary when it suits without reply.

I give you but two examples;-  when they pass sentences that it perceives the public do not like “ soft judge gives rapist two years” you know the kind of thing, but in doing so the judiciary are merely putting into effect what ill considered legislation has required of them.

In the case I did before the summer break, the triple murder arising out of the Birmingham riots, we had an exemplary Judge, Mr Justice Flaux. On the day the jury were due to retire the BBC wished to screen two documentaries about the riots. On the day of the screening they produced the discs of the programmes and the transcripts. Those making the application knew nothing of the case and had not troubled to speak to their own journalists who had followed the trial. The Judge, mid summing up read the transcripts. It was obvious to anyone who had followed the trial the material was devastatingly prejudicial. The judge granted a qua timet injunction preventing them going out.

“Judge bars BBC documentaries without even watching them was the headline”. It has effectively prevented them from getting publically involved in this debate, giving the impression to the public that our judges approve of what the Government is doing. Then they seek, on so called public interest grounds, to introduce secrecy into the Court Room. Curtailing an ancient tenet of our law that justice should not only be done but seen to be done. Kenneth Clarke who protests he is a great libertarian and now Chris Grayling who makes no such claims, plead that without such secrecy the Government will not be able to defend the outrageous civil claims brought by those suspected of terror from whom confessions have been extracted during a gentle chat over a cup of tea. You know that is bunkum, the Civil Courts have always had the power to withhold documents on Public Interest grounds and  to hold in camera hearings when it is in the public interest to do so.

So what is the real reason? To hide from the public the disgraceful conduct of our politicians in taking us into an illegal war, in indulging in extraordinary rendition and extracting confessions by torture. That that is accurate was confirmed when the Guardian revealed the internal impact assessments on the Justice and Security Bill. Top of the list of benefits of the legislation was to protect the Government  from bad publicity. Which is precisely why they set up IHAT (Iraqi Historic Allegations Team), an internal inquiry which the Court of Appeal ruled lacked the necessary independence to fulfil  the complainants Article 3 rights.

Churchill said that “ the nature of a democracy is defined by how it treats its prisoners”. Of course if you do not know how a democracy treats its prisoners you are not in a position to judge it. Which of course is the point. Keep the plebs in the dark and they will believe all is well. One shudders to think what he would have made of how far we have regressed. It is that philosophy which in part is driving them to rid itself of the Bar.

The independent Criminal Bar has only ever been driven by the mantra to do right and fear no one, which is why collectively over the years we have been instrumental in exposing some of the worst excesses of those who seek to wield power. Now we are on the brink of extinction. It has been a long and subtle process.

It started with the year on year publication of the so called fat cat list.  The public being encouraged to believe that barristers milked the legal aid fund for all it was worth. “ Top QC earns £750,000 per year” These kind of figures were in fact manufactured by the system the Government had themselves created because in reality that figure represented 3 – 4 cases and 3 years income which happened to be paid up in the same tax year.

Did anyone bother to enquire how much the barrister paid out in overdraft fees whilst waiting for their money? It created a sufficient screen to reduce barrister earnings to less than plumbers rates.

They have now started publishing the earnings of the likes of John Kelsey Fry QC, under the pretence he is funded by the Tax payer. He as we all know has not done a publically funded case for years and is entitled to every penny he earns in a competitive private market.

The Government themselves have pretended that the earnings at silks level  should equate to a consultant surgeon. There are few if any criminal legal aid silks whose earnings equate with that of a GP let alone a consultant and the recent GP’s strike has highlighted exactly why.

The Government forgot to tell the public that no one funds a barristers pension pot, no one subsidises the training of the next generation, no one pays for their working accommodation, their administration staff or computer support. In real terms we earn nothing like a GP and at junior level many earn less than cleaners.

Now Mr Grayling is telling the public that all leading juniors are merely silks in waiting and that most silks are over the hill. That piece of mis-information is being put out to pave the way for murders to be prosecuted by juniors, which is happening throughout the country to disastrous effect. A number of recent such cases have collapsed necessitating a silk to come in and prosecute the re-trial. A false economy if ever there was one. The Commercial Bar, who have been so supportive of us in recent times told me why it was they valued the Criminal Bar so. It is your reputation world wide that causes so many from abroad to seek redress and assistance in the United Kingdom. No Government has ever recognised that substantial contribution we make to the economy.

Slashing our fees is just part of a long term strategy designed to ultimately destroy the publically funded Bar. The Government know full well that the Bar funds its own training without subsidy. It admonishes the Bar for not providing the pupillages required for the 1700 bar students who qualify each year, yet it knows the Bar can no longer afford to train, they have to live. Ultimately the Government knows that if you starve the profession of its youngsters it will wither on the branch. That has another side effect. Those from disadvantaged backgrounds who turn to the professions to showcase their skills are being shut out. In the past we were allowed to re-dress the balance a bit by positively discriminating. Now we are told that that it itself is discrimination. It seems to me that unless you have an equal opportunity from Cradle to Job interview, you have to have a way of levelling the playing field.

The Government knows full well that it has enshrined a system where bribery for briefs is common place. Edmonds who heads up the LSB thinks it is fair competition. Public money being used by barristers to pay solicitors to instruct them, solicitors paying clients to instruct them. It is not fair competition, it is a crime under this Government’s own legislation the Bribery Act. But that does not concern them if it suits its hidden agenda.

What is the morality of a Government that allows companies such as Wonga.com to flourish. A company whose annual interest rate has 4214 % , to borrow £100 and pay it back after a year will cost you £ 4214, borrow £1000 and that will be  £42,140,  an interest rate that would have made that charged by the Krays look positively charitable.

As of yesterday they had brought it down to 1909%. How generous of them. Wonga’s riposte is that it is an individuals freedom of choice to pick their products. Borrowing at such rates does not indicate freedom of choice it is an act of utter desperation. When you realise that 90% of their loans are taken out to buy food, as the Telegraph revealed some time ago, it underlines the point. Any politician with an ounce of morality and interest in the public would seek to regulate those who feed off the most vulnerable in society, the loan sharks, the bankers, the supermarkets, the politician and the building industry. But rather it concentrates on regulating the doctors the lawyers and the press. I wonder why? You get a pretty good idea why when you see Stephen Luff, a senior adviser to our prime minister move smoothly from No 10 to Wonga.com. The spin put by some of this move, is that it represents a corporate raid on Downing Street. Sounds more like pay back to me.

The consultation on QASA, the Quality Assurance Scheme for Advocates has recently concluded. This scheme is not being introduced to protect the public from rogue advocates. It is being introduced as a necessary pre-cursor to One Case One Fee. The Government knows full well that once they hand the purse strings to a single provider the Bar will be offered a derisory amount to conduct a case. The result will be that many will give up. The public will complain they were not afforded an advocate of their choice. The response will be we never promised you an advocate of your choice. All we promised you was an advocate who had earned the appropriate grade to conduct your case. That this is the intention was underlined by a recent report on the cab rank rule commissioned by the LSB. The replacement they argue should be as follows:

borrowing a rule from the New York State Bar code of conduct and slightly smartening it up. This is the proposal:-

“10. You may not be refused representation on the basis of race, creed, colour, age, religion, sex, sexual orientation, national origin or disability.”

This rule is clear and unambiguous. It protects clients and it can apply to all lawyers, and we see an equivalent in the SRA Handbook. It has no need of exceptions and exemptions, which presently serve only to confound and confuse clients. For the purposes of the client and consumer, representation will be supplied and access to justice and the upholding of the rule of law would be ensured by the profession. It would be practicable, within the English context, to augment the rule by including references to type of client, the nature of the case/crime or the defence required. These would deal with the original aspects— unpopularity of clients and heinous nature of crimes—of the cab rank rule that have since been overshadowed by arguments over funding.

The difference between the Cab Rank Rule and the new proposal is glaringly obvious. One dictates that a barrister shall not refuse a case for a proscribed set of reasons, race, gender etc. The Cab Rank Rule requires a Barrister to take a case that is within their knowledge and expertise providing they are free to do so. There could be nothing clearer. It effectively outlaws any form of discrimination whether it is in the list or not. The advocates of the change claim the cab rank rule is breached on a regular basis. The only example that is given in the report prepared for the LSB is the refusal by specialist sets to accept cases which do not fall within their specialism, which is a breach of no rule at all.

The astute amongst you have already spotted that the replacement of the CAB Rank Rule with it’s supposed American counterpart,  has once again got nothing to do with serving the public interest or protecting the consumer. The purpose behind it is to ensure that when the Bar is forced into work with the likes of Eddie Stobart, because they have the contract, the public will be forced to accept the barrister they are given, provided he or she has the necessary QASA badge. Freedom of choice for the consumer will disappear, which of course is precisely the situation with publically funded cases State side.

For many years the public and the Bar have been fooled into thinking that new proposals for the reform of our profession have nothing more behind them than the reform for the sake of the public interest. Everything that comes out of the LSB, BSB and Government is designed to achieve but one aim, and that is the wholesale destruction of both professions and its delivery into the hands of the private sector.

What the solicitors profession is facing is every bit as dire. We have already seen many small and extremely dedicated solicitors disappear or be swallowed up by what this Government is ultimately seeking to achieve, huge legal service providers who care nothing about quality but everything about profit, and handily are beholden to the government to approve its next contract bid in 3 years time. That will make sure they do not expose the government and the police when it is in their clients interest to do so. Thirty or so ABS’s (alternative business structures ) have so far been approved 39 more await approval. Not a single one is a solicitors firm or barristers chambers, they are the likes of G4S, Serco, Geo-Amy, and  Eddy Stobarts of all people. No doubt you will get a free Yorkie Bar with your cut price legal advice. These are the firms that will get the contracts. If you do not believe me you should know that the Co-Op has recently bid for the entirety of London Care work.

 

Those of us who practice at the publically funded Bar, had a choice. I joined Cloisters as a civil lawyer, indeed I practiced civil law for six years. We chose publically  funded criminal  work whether we prosecute or defend because we thought it was important. The reality is that in 5 years time the public are going to wake up and find out that an important corner stone of their democracy has been stolen from them. They will never get it back. Once you get your young barristers being trained by Tesco’s you will get Tesco judges sitting on the bench. It is a terrifying prospect.

Those of you who choose to join this profession whether it be as a barrister or solicitor will do so for one reason and one reason alone and that is because you have the passion to do right and fear no one.