Our thanks to Adam T Smith for this blog. Students are the future of our profession, and we are fighting to ensure that you have one. Your support is invaluable and your voice needs to be heard.
This quote from what follows, admirably sums up the message that should go out to Bar Standards, the MoJ and the General Public.
“But if I did work in legal aid, I wouldn’t want to be merely somebody’s idea of ‘competent’. I would want to have the opportunity to develop a reputation which speaks for itself on the basis of which people would choose to engage with me.”
I have been keenly following the progress of the ongoing debate (or should that be battle?) over the Quality Assurance Scheme for Advocates and Best Value Tendering, first with fascination, and then with a degree of alarm. I hope to express my view as fully as possible on what the proposals of QASA and BVT mean to a law student at university.
I’ll start with a metaphor. A man is about to walk into a building. He is a few metres away from the entrance. Just as he is making his way up the path, the building catches fire. A blazing inferno which our man can only stand outside and watch. I cannot (and must not) speak for all law students, but that accurately sums up how I feel about my ambitions of practicing in criminal law (and more broadly, publically funded work). I’m standing outside watching the justice system combust, and thinking that, if I’d have been there much earlier, I would have been inside during the blaze.
I am coming to the end of my first year. First year has its advantages. I can enjoy the study of law with less pressure; I can develop responsibility, both living independently and working in a disciplined way, at an appropriate pace. Finally, I am best-placed to keep a keen eye on what is going on in the legal professions, and the justice system, so I can consider my future with full knowledge. Publically funded work is all I’ve ever wanted to do, right back from when I went to my Local Magistrates’ Court (now closed due to cuts) and watched defendants self-represent. As I have spent more time on shadowing placements, at the civil and family courts, I have seen litigants-in-person there too – it never seems to go well. Lawyers are important. Representation and advocacy are important. And this means having lawyers (both sorts) who strive to excel. That’s what sparked off my enthusiasm in the first place.
If I understand it correctly, QASA is going to make sure that lawyers will not strive to excel. It claims to assess competency. Do we really want advocates who are merely competent? Do we really want judges taking their eyes off the issues of the case to fill in forms and formally assess whether the advocates are competent or not? Constantly being assessed comes at a price for the practitioners too – time and money will be wasted on this. Baroness Deech has been quoted as saying that ‘most advocates will sail through it’ – if that is such a given, what is the point? Market forces surely already deselect the worst amongst the professions. A shoddy high street practice will not get any repeat business or word-of-mouth recommendation; an incompetent barrister will receive no instructions. So what need for QASA? Any article I’ve ever read on the subject comes up with only one – a badge of respectability.
A badge of respectability for whom? I have taken plenty of time to understand the basic principles of the Best Value Tendering proposals and what it might mean for the profession and I think I have a pretty good idea. The current proposals seek to severely cut down the numbers of law firms who can provide legal aid services. The contracts will be awarded to those who pledge to do the most (not best) work for the least money. Who is going to be able to put forward a competitive tender? Not the local firm on the high street, but the large corporations whose names have recently become mud amongst legal aid practitioners. And regardless of who gets these contracts, are they likely to want to eat into their scant profits by instructing counsel if they have a QASA-graded advocate in-house who can do a competent job in court for them? It seems unlikely. It seems unlikely that this QASA-graded advocate will get paid much, and will not be inclined to work 70 hours a week like some criminal barristers reportedly have to on a regular basis.
Ultimately, what will that mean for the quality of representation afforded to the defendant? Will there even be any quality? And if the defendant doesn’t trust their lawyer and wants a new one, he cannot change representatives except in ‘exceptional circumstances’ (whatever those are), because the lawyer he has is ‘competent’. “QASA says that he’s competent, so he is, and that means we’ve fulfilled our obligation to represent you” – says the Ministry of Justice. I am at a loss to understand how not having any choice about who represents you is just.
As a first year module I studied administrative law. I know one 30 credit module’s worth about Judicial Review, and even I could find grounds for reviewing QASA. Improper purpose (Grayling threatening to impose OCOF on crown court advocacy if the bar does not co-operate is one), failing to take into account relevant considerations, and the Article 6 right to a fair trial. I have it on good authority that Wednesbury unreasonableness never succeeds as a ground for review, but I’d throw that in there too! Abolishing justice for financial reasons sounds Wednesbury unreasonable to me.
So, what does this all mean for a first year law student? Legally aided work has been all I’ve ever wanted to do. But if I did work in legal aid, I wouldn’t want to be merely somebody’s idea of ‘competent’. I would want to have the opportunity to develop a reputation which speaks for itself on the basis of which people would choose to engage with me. I certainly don’t want to train with and work for an anonymous conglomerate which doesn’t know the value of justice. I want to learn from solicitors or barristers who do the work and take great pride its vocational element. Finally, I wouldn’t want to earn next to no money in return for £27,000 of university tuition debt (mine was the unlucky year), plus maintenance, plus a postgraduate vocational course. I think a graduate degree merits a graduate salary. I don’t expect to earn hundreds of thousands on legal aid. But I do expect to earn more than I could have got if I’d have walked into work, as a school leaver, without being saddled with the outrageous debt I know I’m accumulating.
So, to return to our man standing outside the burning building, he can but wait for the fire to be extinguished – or else for the entire building to burn to the ground. Then he will be faced by some very difficult weighing up exercises as to where he wants to take law next. I wish the CBA and all the solicitors affected the very best of luck in putting out that fire (and reasoning with the arsonists!). I had the good fortune to attend the CBA spring conference and I was deeply impressed by the depth of feeling and the strategies being employed by the CBA – I hope you all continue to do right and fear no-one.