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: email@example.com. Follow me on Twitter: @ianswest.
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…..