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

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

  1. “Solicitors have always allocated levels to cases to ensure the right barrister was instructed” says Baroness Deech. How exactly does she know this?

  2. Mr Porter appears to be ill-briefed.
    In 2007 Lord Justice Thomas made clear to Parliament that QASA was the condition precedent to, what was then called, BVT. That has not changed. For there to be a public procurement process there has to be a quality assurance scheme in place.
    It is perhaps no coincidence that the new BVT/PVT consultation, where the principle of tendering has now been set in stone, arises within two months of the BSB rejecting more than 300 objections to the Fourth Consultation on QASA. Such objection includes a considered objection by Combar amongst others.
    So, Mr Porter might ask himself, is the real issue quality of advocacy or something else? Certainly the final structure is a long way from that proposed by Haddon-Cave J (as he now is) who had a short tick-box form in mind, or Thomas LJ himself, who seems to have had a peer review model; much like that now imposed on doctors. It is the input of the “reguliariat” who have created this Leviathan of a scheme.
    Whilst Mr Porter may well feel that quality has not been of relevance in his practice for some time, the same should not be said of the profession. It is, of course, difficult to explain how quality is important in criminal defence (and prosecution), but we know it when we see it and when we don’t. We know, for example that “POAs” cannot be seen to be in the public interest. At least in that, Lady Deech and Sam Stein of the BSB have public ally agreed with.
    The CBA has, perhaps a little late in the day they would concede I am sure, begun to motivate the Bar and beyond as to the potential consequences of the scheme. The profession appears to be more united on this issue than on any other in recent times, including fees and the continuation of silks. Such unity extends beyond the criminal bar. I am assuming they are united on this precisely because the integrity of the system is under threat and not just individual livelihoods or bank balances. As he put in his post, we don’t want to see criminal advocacy as the plaything of the rich.
    Insofar as I can understand what Mr Porter is saying, and it is a rather disjointed submission (level 1 perhaps), he does seem to concede that QASA is unfit for purpose. So if, as Mr Porter suggests correctly, QASA is a fig-leaf, why does he not support the CBA’s attempts to alert our stakeholders to the threat to the national interest of this and its twin proposal PCT? Everyone is entitled to change their mind. I invite him to do so.

  3. I think it might just be me but…….. what’s the problem with the Government’s proposals? What on earth makes anyone at the Bar think that the Government, the public or anyone else cares a jot as to the quality of legal representation offered to allegedly violent, perverted or dishonest criminals? In my experience quality hasn’t been of any relevance for some time now. Certainly since the CPS and later, solicitors took in those that perhaps didn’t have the aptitude for the self-employed Bar there has been an indisputable lowering of the standard of advocacy on offer (who hasn’t been approached by a member of the Judiciary lamenting the general standard of advocacy from “in-house” advocates?). Perfectly reasonably, the salary offered to in-house lawyers reflects this position. As a result the fee structure for the future must be doomed to plummet. Apparently the average salary in-house is currently between £25k – £40k. Obviously not the kind of income to attract the best, but the best will doubtless move into other areas of law.
    The salaries of the future will perhaps be attractive enough to households eager to have a second income or to those with a passion for crime and the luxury of independent means. (To this end I understand the Bar Council are considering allowing Companies to “sponsor” pupillages (presumably for siblings of directors?) in the great tradition of the Bar as was.)
    Of course QASA is an inadequate fig leaf, and doubtless it will be just as ineffective as that other Government “Quality Assurance” scheme – The Care Quality Commission. Whilst the public might be outraged at the maltreatment of the elderly, i can’t see them getting too worked up at the inadequacy of QASA to properly assess advocates! As for those advocates they will be able to hide behind the QASA label as proof of their competence.
    The CBA would be well advised to recognise the nature of its future membership and adapt accordingly. Perhaps debt counselling, employment advice and “hoop jumping” seminars would be more use to its future membership than endless headbanging and “calls” to (ineffectual) action? We all know that a united front in strike action is totally unrealistic; the second incomers, the opportunists eager to grab a forsaken brief and those aiming for a seat on the Bench will never stand united, and i suspect if push comes to shove the CPS will refuse to brief in the future anyone who took part in industrial action.
    The public and the Government want convictions – surely the Criminal Bar should therefore focus on highlighting the fall in conviction rates and the rise in “acceptable” lesser pleas arising from poor case preparation and below standard advocacy from in-house prosecution lawyers in an attempt to persuade the public that actually quality matters?
    There will always be plenty of work out there but it will be poorly paid and not of a very high standard. That might revolt those currently practising but will be not unduly worry the future generations of poor quality, cheap advocates who, but for these Government changes, would never have had the chance to don a wig and live the dream of calling themselves barristers.

  4. From a hospital bed after surgery performed by brilliant and dedicated surgeons on a ring fenced budget I’ve logged on to read CMTQC’s news at CBA. It seems not to be more of the same but more and far worse. He’s excluded from critical meetings. He is on our behalf fed half truths by our own regulator and she is now, not that we doubted it before, doing the bidding of the stone-deaf, myopic, and near autistic so-called Lord Chancellor. Before you edit that word as offensive please note that we could have every sympathy for anyone so afflicted were it not for the fact that, unchecked, his deeds will work a dreadful evil and that, at this time of year particularly, we might ask forgiveness for those who know not what they do. But Grayling knows exactly what he does. And worse he does it blinded by a belief in a cause. Terrorists claim that too. No matter what facts MCTQC or CBA put before them our case will be spun against us by Grayling, Deech, the Legal Action Group as a case rooted in self interest where we weep over the demise of a cash cow bloated and stinking in rich pastures.
    Well it’s not, is it? We are screaming but not being heard that what is in prospect is a criminal justice system that is rooted in cash and cost. One that is to be given the kite mark of approval for all to see and awarded against criteria so ludicrous, so counter productive of quality assurance as to amount itself to gross deception of some hundreds of thousands of people in direst need of serious legal assistance. It does not at first matter to the terrified client whether his/her case concerns speeding points or gross negligent manslaughter. To him/her the case rules a life and may ruin it. He/she will surrender to the advice and doubtless follow it and be done. Yes done! That the lawyer on whose words he listens and whose advice he craves is not licensed to know whether there is a defence available and if so how viable it is it not something likely to impinge on the client at all or, if at all, until too late.
    And that the lawyer whose part licensed words is one whose ethic is the rock bottom pricing to which the supplier has had access is also a fact not likely either to impact upon the client. But it has everything to do with quality.
    At this point and by way of parable may I confess to an episode of gross professional neglect.
    Many years ago one day I prosecuted an entire list of run of the mill cases in the Crown Court for sentence. They were all listed before a completely incompetent and dangerously stubborn recorder. Each case required the Recorder to have explained exactly what his powers were and how he might exercise them. I’m sorry to say that so many of them were defended by an advocate who either did not take the situation seriously enough or couldn’t. Despite my efforts until the gloaming the Recorder got most of them wrong. At the end of the day, my patience exhausted and utterly dumbfounded he had the nerve to ask me if in review he had made any mistakes. He just had not been listening. In exasperation I barked at him that nothing he had done was incapable or remedy by the Court of Appeal. This my friends is the great safety net for Grayling, Deech and Tesco. Make no mistake.
    RWQC
    Dere Street Barristers

  5. An answer to Patricia Robertson QC:

    1. Is opposition to plea-only advocates self-interest?

    The Criminal Bar thinks the the public will readily understand that before a lawyer can properly advise his client about whether to plead guilty to an offence the lawyer will need to have sufficient experience of having conducted trials to be able to judge the client’s chances of success if he goes to trial. How can the lawyer who has never been in a trial advise the client about the admissibility of evidence which may make the difference between success and failure?

    2. Will opposition to POA’s be perceived as self-interest?

    Not by a well-informed public, no. The Criminal Bar went to enormous lengths to become accredited members of the CPS Advocates’ Panel in order to be permitted to prosecute cases. The Bar has in this way positively furthered the aim of ensuring the profession is fit for purpose. The suggestion that opposition to POA’s is self-interest is simply mischievous.

    3. ‘Conflating QASA with BVT is wrong.’

    Why is it wrong to reject a fraud on the public which is being introduced (QASA) to bring about an even greater fraud on the public (BVT) – which brings with it the inevitability of a wholesale lowering of standards in the criminal courts. Because that is what BVT will introduce – a rampant and widespread diminution in standards as cost becomes the only criterion and the need to make a profit the sole arbiter in decision-making.

    4. Are we cutting off our noses to spite our faces.?

    No – we are not. We are rejecting QASA in order to try to preserve for the public a criminal legal system which is still held up throughout the world. If we do not oppose QASA the Criminal Bar, which has served the public so well for so long, will be finished. And the BSB, our very own regulator, will, I am sorry to say, have been instrumental in its destruction. If QASA, which heralds BVT, is introduced, there will be no face left to spite.

    5. ‘If POA’s are a threat to quality it is illogical to exclude them from an appraisal system designed to protect the public.’

    No – it is not. If the whole idea of POA’s is absurd it is not illogical to exclude from appraisal that which should not exist to be appraised in the first place. The argument that the Bar’s analysis is illogical is itself specious.

    6. ‘Others will mop up the work.’

    Utter nonsense. The Criminal Bar still prosecutes and defends by far the greater share of serious cases. The system will grind to a halt within a fortnight if the Criminal Bar are forced to decline to sign up to QASA.

    There are not enough HCA’s either on the prosecution or defence side to do the work and in any event the solicitors’ profession is showing a heart-warming solidarity with the Bar because they recognise the nonsense that QASA is and the destruction to our legal system which BVT heralds.

    The CPS, with its budget slashed, is struggling to do the work it has now never mind taking on the prosecution in court of every trial in England and Wales.

    The Bar has nothing to fear on this score.

    Finally – we at the Criminal Bar look forward to the BSB providing the evidence (as opposed to tittle tattle) that barristers are failing to provide an acceptable service to the public.
    Until the BSB has quoted chapter and verse the profession simply does not believe you have an evidential basis for imposing this burdensome regulation on us. If you do then please share it with us – be transparent. Transparency is after all, one of those things by which the BSB apparently sets such store.

  6. Dear Baroness Deech,

    I have contacted your office (twice now) asking if you would be prepared to have this debate with me in the pages of Counsel magazine. I have been told (the first time) that you were in the house of Lords; the second time that you were ‘in a meeting’. I would be ‘got back to’….

    I appreciate that you are busy. Unfortunately, due to the erosion of my practice by solicitor advocates, I am not. So, what’s it to be: a ‘talking heads’ piece in Counsel, or an eight-foot square of tarpaulin, a tub of grease, no-holds-barred, two falls or a submission? (I’m good at those). You choose.

    Ian West
    Fountain Chambers
    Middlesbrough

  7. Pingback: This is what BVT looks like | Dan Bunting - A Life in the Bus Lane

  8. Pingback: QASA or We’re All Doomed | Pupillage and How to Get It

  9. Simon,

    You have put it beautifully and I wholeheartedly agree with this post and your other piece earlier in the week. Assuring the public of the quality of the service we provide is not something of which we should be afraid. However, the means to that end, as currently proposed by the BSB, is something of which the public should be afraid.

    Nick

  10. So then, here it is. The Bar cannot be trusted to police its own standards,the Bench is agreed and bases this upon evidence to which we are not privy, we are going to be assessed by some organisation or other so better the BSB because it is our own (!) than one imposed upon us (unlike this one of course), we are in a period of universal austerity so brace yourselves because BVT/OCOF is coming and we are all ungrateful for what is being done our behalf. There is only one result.

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