The BSB Joins The Debate

Below is a comment that Patricia Robertson QC has written – reproduced in full as a separate post.

A few points before everyone piles in.

First: this is written at my express invitation. Secondly, Patricia Robertson is passionately concerned for the Bar and its future. Thirdly, it isn’t only brave to put your head above the parapet – it is also what we would expect our Regulator to do and it constitutes professional behaviour. Fourthly, therefore disagreement is fine, but abuse is unacceptable. We are a profession and this website is open to all.

I will reply, but it seems to me only fair – having offered the right to reply – that the reply is presented unmediated for people to see and consider.

Go to it.

Simon,

As ever, you write well and persuasively. I recognise the fact that your posts on QASA are driven by the self-same passion for our profession that is the driver behind all the help you offer pupils and the contribution you have made on Bar Council and BSB committees. But I believe that on this particular issue, you are wrong. I’ve explained the BSB’s position on QASA in posts on the blogs run by Ian West (http://bit.ly/104VTX0) and Nigel Pascoe QC (http://bit.ly/11Fh4KH) and I’ll try not to repeat myself more than I have to.

Let me just focus on two things:

1) Does the boycott make sense?

As to the supposed link between QASA and the MoJ proposals, that’s a bit like saying that if, seeing a storm on the horizon, you arm yourself with an umbrella, you have thereby caused the storm. If you throw the umbrella away, you won’t stop the storm but you will surely get a soaking. QASA is an umbrella designed to protect the public from risks to competence that already exist in a criminal justice system that has been under huge pressure for a long time and faces even more extreme pressures in future.

Opposing QASA simply will not and cannot stop the changes that many perceive as threatening the Bar – QASA is not causing those changes – but it could deprive the public of protection that will be all the more needed if your example (the spotty youth, paid peanuts) really does come to pass.

The Bar Council’s job is to protect the interests of the Bar in the face of these changes but the BSB’s job is to protect the public interest. We can’t down tools on that job. Least of all can we do so because the Bar, understandably concerned about the implications of the MoJ consultation, have mistakenly lit on the idea that opposing QASA is the answer and will advance that cause.

2) Will QASA be effective to protect the public against those who are not competent to be doing this work at all?

The scheme is the product of negotiation and agreement between three regulators because it’s essential there should not be different standards of basic competence, depending on who regulates you. A regulator can’t insist on excellence as the threshold people must clear in order to be allowed to ply their trade. If there’s a broader threat to competition on quality, it doesn’t come from the fact that QASA will be there to ensure that the incompetent are taken off the road. See what I said in my post on Nigel’s blog about that and about the scope for the Bar to develop kitemarks of excellence to operate alongside QASA.

If either of us had had sole drafting of the scheme no doubt we’d each have come up with differing approaches and if we’d asked a hundred barristers we’d have as many variants. But it’s really no answer at all to say I would have drafted this bit or that bit differently. The issue is simply: is it reasonable to think this will do the job? The regulators have come to the conclusion that it will. Equally, it’s only reasonable to expect that experience of the scheme in operation will identify some ways we can streamline and improve it. That’s normal. But that’s all a million miles from saying the scheme that has resulted from this process of negotiation is not fit for purpose, as you contend.

We and the other regulators have approved it because it will do the important job of weeding out those who, for the sake of the public, really should not be allowed to continue in this work (or indeed, to enter this market at all). The Judges will be able to ensure people don’t abuse the system in allocating cases to levels. Those who have been dubbed “PoAs” will, for the first time, be subject to assessment at assessment centres against the full trial criteria at level 2 and (subject always to their professional obligation to act within their competence) will be able to do pleas at level 3, but not above. There will be safeguards to ensure that any new entrants to this field are up to the job, or they don’t get to enter. These are all steps forward from where we are now.

I accept that most of the Bar offer the public high quality, despite all the pressures they are under, and therefore have nothing to fear from appraisal, but you agree with me that there are some people out there who should not be and there may very well be more of those in future if we do nothing about it. Two assessments in two years, repeated on a 5 year cycle from the date of full accreditation, is not a disproportionate imposition on those who are good at their job, as a means of identifying those who are not.

Let me quote you back at yourself: “Even if QASA were a brilliant scheme, its adoption now would help the government gut the legal professions, which – all too often – are what stands between what the government would like to do and what it ought to do (a role often claimed – but seldom performed – by the media of whose scorn we are supposed to be afraid).” I’m afraid that gives the lie to your position. QASA is being used as a weapon in a political campaign in opposition to the MoJ but it’s not even the right weapon for that purpose. The reality is that if we all get behind QASA we can ensure it does do what it says on the tin. Opposing quality appraisal because of a misguided belief that doing so will win the argument with the MoJ is just about the most unattractive stance the bar could take. By binding up QASA with the issues raised by the MoJ consultation you risk discrediting the truly important points that need to be made.

I do of course understand how it has come about that QASA has become a lightning conductor for all kinds of other concerns. But it really is time to separate out the issues. The BSB has to and it does act independently of the profession. That independence shouldn’t be mistaken for hostility to the profession. We share the same concerns about ensuring access to justice and the integrity of the criminal justice system. In this instance, we differ about the means. As I see it, nothing constructive can be achieved by the criminal bar falling out with its regulator over this issue and much unintended harm may be done. Let’s work together for the goals we share and not let the public interest become collateral damage in all this.

Des Learns to Love Big Chris

I hope that more sensible counsel prevails over on the other side of the profession than is revealed here. I am bound to say that the feedback and feeling I get from local solicitors is that they are rather clearer about the extent to which our interests are linked than is Mr Hudson.

The reality is that – whether Mr Hudson is piqued by not being invited to a meeting with our beloved Lord Chancellor before the Circuit Leaders (I gather the Law Society are having their own meeting on 8th May but, at the time of writing are not taking any solicitor who practises in criminal work to that meeting) – or whether he believes that the way to deal with the cuts is to try and sacrifice the Bar – this is not a sensible way to approach matters.

It is not sensible because, even if our beloved Lord Chancellor inflicted the entirety of his cuts on the Bar and eliminated us from criminal work altogether, and even if solicitors were then willing to deal with all the advocacy that would be required, the ‘success’ of this tactic would last as long as it took the government and its corporate friends to say “no need for OCOF now, let’s just get on with price competitive tendering at 35% below current rates”. In “1984″ Winston sells out Julia rather than face his worse nightmare. It didn’t work then and it won’t work now.

These cuts are the end of a legal profession devoted to client choice, client care and justice. They impose a system devoted to the form of representation, not its substance, as cheaply as possible and, if you can’t afford to pay for something better, it’s your fault for being poor. That is the message that the legal profession needs to put out. Squabbling over who are the best advocates is footling. It risks damaging the trust that the professions have managed to build in the face of the common threat.

There is no more that a barrister can do than say that our opposition to QASA and the cuts is as firm when they apply to solicitors as when they apply to the Bar. I truly hope that Mr Hudson comes swiftly to the same view and that those solicitors who read this assist him to do so. The trouble with loving Big Brother is that the next thing that happens is you get shot in the back of the head…

Unfortunate Sunday Quotes

The Express is expressing concern about the government’s plans – a worthwhile thing to do and a poser for those of us who had previously condemned it for its politics and interests. It is a dreadful thought that we may not have been entirely correct. But, faced with evidence, it is always necessary to reassess. That is what honest and sensible people do.

So, I want to draw attention to what is said in the penultimate paragraph of that article. In full, this is what it says:

The Justice Secretary added: “We will continue to uphold everyone’s right to a fair trial – quality assured duty solicitors and lawyers will still be available just as they are now – but that doesn’t mean we shouldn’t look again at how the system which provides this is operated and deliver better value for the £1 billion of taxpayers’ money spent on criminal legal aid a year.”

It is a direct quote from our beloved Lord Chancellor. The part which struck me with some force was the bit that says (with my emphasis added):

quality assured duty solicitors and lawyers will still be available just as they are now

That does seem to indicate that QASA and the new proposals are linked – exactly as the Bar has been saying.

That now being seemingly confirmed direct from the horse’s mouth (oooh - so polite), this may be a good time for those at the BSB who have been saying the opposite, to reassess the position. That may be painful, but it will also be sensible and honest. I am perfectly happy to accept that our beloved LC has never said this before – but he has said it now. As Dorothy Parker said (I paraphrase) you can’t trust blokes who promise to love you.

Circumstances alter cases. It is now possible to argue, based on the evidence, that forcing QASA through will actually assist the Government to progress its plans to endanger us all. If that is even a possibility, it ought not to happen.

There may be a counter-argument. If so then, if I am sent it, I will publish it in full.

Opportunity Knocks

The late Abba Eban once remarked that the Palestinians never miss an opportunity to miss an opportunity. Whether that is true remains debatable. Sadly, it seems to be true of the BSB.

The Lord Chancellor, possibly a little more politically savvy than the regulator, has made it clear to the Circuit Leaders that he doesn’t give a monkeys about QASA. Specifically:

QASA – not involved in setting it up and to him it is an irrelevance – matter for professions to decide upon.

The reality is that without quality assessment there cannot be BVT. The public will simply not trust the spotty youth from GS4 (Co-Op has declared itself out of the running) without quality assessment, given its suspicion that, as the spotty youth is being paid peanuts, they will be getting a monkey. Grayling is not saying there will be no Quality Assessment – merely that he isn’t interested in QASA. In truth he needs QASA or something like it: is it perhaps that he sees that QASA is unlikely to happen because the professions (that’s now both of them) have no confidence in it.

We know the solicitors don’t want QASA, because at the meeting of the steering group yesterday, they said so. We know the barristers don’t want QASA because you would have to live on Mars not to know it.

Why is QASA the most unwanted thing since the baby in the Convent? Some answers:

• It is, truly, rubbish. It does not measure quality and it fails to do so in 2 distinct ways. First, it elevates the type of work above the actual skills upon which advocates should be judged. Advocacy should be a skill progressively acquired. The way to do a murder really well is the same way to do an affray really well. It is just that experience and acquired skill grows with the advocate. Not everyone gets to the top. But the proposition that different qualities are required is nonsense. Secondly, once you take the view that you can have plea only advocates you are not measuring quality. Plea only advocates will be assessed to level 1. They will be able to do pleas to level 4. There is not even a pretence at measuring the quality required. It is a fudge – possibly politically inspired. 
• But now the solicitors do not want QASA either. Why not? Because it paves the way to competitive tendering, the end of client choice and the end of competitive services. That is what they told their own regulator – the SRA. It comes to this: the possibility of plea only advocacy was attractive. But set against the certainty of annihilation of the solicitors’ profession it is not attractive enough.
• The Judges do not want QASA. The official responses have been very cautious. Judges exist to serve and do not want to be seen – nor would it be right that they were seen – as the leaders of a movement to prevent the professional regulators from regulating as they see fit. But they are professionals and they are no more convinced about QSA’s merits than any single other professional. They know QASA is rubbish, because they are well placed to make their own assessment of it. They are not keen on being made to be official snitches, feeling – no doubt with justification – that the type of assistance that might be useful to help someone up their game is not going to come from failing a judicial assessment, conducted during a tricky trial with a client who thinks the Judge is against him. They also don’t want to fill in 78 tick boxes when they should be thinking about the case. And who can blame them?
• It is now clear that even the politicians and the civil servants – whether they truly want QASA or not – have decided that supporting it is bad for them, and perhaps bad for the regulators who would hardly be helped by the ardent support of a Lord Chancellor who no one believes has a capable grasp of the system he is supposed to manage and defend.

So who does want QASA? The Regulators.

Why? It cannot be because they believe in it. QASA has now been hotly debated for 6 weeks.  I have faithfully reported every argument in favour of it – usually, admittedly, to then be rude about it (it is just so tempting) – but faithfully nonetheless. What has stood out a mile is that no-one defends QASA. What they say is what Hilaire Belloc tells the children after Jim is eaten by the lion:

and always keep a hold of nurse
for fear of finding something worse.

The trouble is, of course, that there is nothing worse than QASA. Not because a worse scheme could not – with some real effort and excluding any lawyer at all from the panel and allowing all the Lord Chancellor’s whims – be devised, but because the effect of QASA means that no scheme, from whoever and consisting of whatever could have more disastrous results.

That is why the profession is astonishingly united and why the solicitors are standing with us shoulder to shoulder – as we are with them. This is not about squabbling over the biggest slice of the pie. This is about starving to death. And, sadly, the BSB simply does not comprehend the point.

To prove that proposition, look at what Baroness Deech said yesterday:

• Most barristers will “sail” through QASA. Yes, we will. Because it doesn’t measure anything and because most of us are good enough to pass the low standard that can be discerned. What is odd is that this is supposed to be a recommendation. How can it be? It says that QASA is a lowest common denominator model, designed to be passed. Anyone seriously interested in testing quality is, therefore, bound to despise it.
• The public expect some assessment of quality. They do. They are happy with the fact that barristers compete in a massive market and survive. They are happy with the silk system. They are happy with CPS grading. They are happy with 10 applicants for every pupillage. They are happy with the fact that solicitors depend on barristers to do a good job and don’t brief barristers who upset clients. There is no – repeat no - public call for QASA. I am not the person saying this. The person saying this is Dr Malcolm Cohen. Dr Cohen is one of the BSB’s lay majority. He has headed a multinational company. He is a qualified accountant and a lay magistrate. This is what he said:

he could not support QASA “on a matter of principle” because he did not consider there to be sufficient evidence to support the need for it in the Crown Court and above

• It is in the public interest to identify poorly performing advocates. I agree. But not only does this beg the question of how incompetent you have to be to be picked up by QASA if most people will “sail” through it. Not only does it suppose that QASA will find these people. It also supposes that QASA is the only way. That is absolute nonsense. There are other and better ways – a properly designed scheme being the most obvious.
• That QASA will help vulnerable people to exercise a meaningful choice of advocate by ensuring they are “at least competent”. Can this be serious? Most people will sail through. By definition, therefore, most people are already at least competent. What added protection does QASA provide?

I have been genuinely puzzled by why the obvious is not apparent to the BSB (or at least to some of it – it is clear that the main board is not entirely trusting of Baroness Deech’s platitudes). Some people have pointed out the financial gain – the BSB’s finances for next year do not balance unless they pick up QASA fees. But I do not believe that is it.

I believe the BSB is caught because it has invested too heavily and too personally in QASA. Too many people, with egos that are too large for comfort, have too much invested in the scheme to actually perform their obligation to regulate in the public interest. QASA is not in the public interest. If the most you can say is that it is better than what might replace it, it is not in the public interest. If the best example you can offer is the frankly feeble attempt to suggest that vulnerable people will be protected by a scheme that most of us will sail through then your scheme is not in the public interest.

And, when you add to that the fact that QASA will murder my profession and the solicitors’ profession, destroy access to justice, reduce diversity, cost a fortune (no one keeps their costs down once they are a monopoly provider unless compelled, and – as numerous private finance initiatives have demonstrated – the government is incompetent when it tries to compel this), deprive clients of choice and ensure that the quality of advocates and solicitors and Judges drops like a stone, QASA is not in the public interest.

That argument is made out. It is not capable of challenge and not a single person is even trying to challenge it. The only reason for defending QASA is the 3 year-old reason - “it’s mine. Mine!” As a longtime supporter of the BSB and a long time worker for it I deprecate that approach. It is time to be grown up and actually re-examine QASA.

I believe in quality assessment. I believe that it is a necessary part of the profession moving forward into modernity. It is comfortable to be as we have always been but, in an era of increasing specialisation, increasing expectation and increasing complexity, the way the Bar has been is not the way it can be. We must maintain public confidence or we are nothing. If we are good we can always be better. If we are worried that standards are slipping we need to act now, not to hope that no one discovers the cracks.

The fact that the public is not crying out for QASA is a reason to abandon a scheme which offers nothing. But it is not a reason to do nothing. Rather, it is an opportunity to create a space where something can be done which is truly helpful to the profession. Whilst the professions together tell the Lord Chancellor what he can do with his plans to stuff British justice and whilst the Bar says no to QASA, we have a chance not simply to win the war but to plan the peace.

And – surprising though it is to find myself saying this – we need the BSB. Not in its current inflexible, self-concerned, egotistical mode but as a professional regulator where members of the Bar and lay members engage together. Because – and whilst it is not remotely true of QASA, it is true at the moment of the BSB – what would replace it would be worse. If the good people leave the BSB, or if it is replaced, the replacements will be those who are content to war with the profession, whether they are from within it or outside it.

So this is a chance.

But the message is clear. The BSB is pushing QASA when it should not be doing so. The need to protect the public against the few who will not sail through is not a reason for QASA, because QASA is wholly unfit for purpose. Even if QASA were a brilliant scheme, its adoption now would help the government gut the legal professions, which – all too often – are what stands between what the government would like to do and what it ought to do (a role often claimed – but seldom performed – by the media of whose scorn we are supposed to be afraid). Faced with that choice, there is no choice.

That the BSB intends to ram its will home in the face of opposition and all the arguments, by threatening the very Bar it says it wishes to defend with professional disqualification is more than unfortunate. I look at the people on the conduct committee, some of whom I know well and ask, will they be prepared to prefer the charges? I look at the people on the disciplinary committees on which I have sat and before which I appear: I know them to be fair minded and concerned for the profession and I ask, will they put barristers out of work for the ‘offence’ of not signing up to a scheme? I look at those who prosecute for the BSB – all of whom work for free because the reputation of the profession depends on being wiling to deal with our own bad apples – and ask whether they will be willing to prosecute people whose only ‘offence’ is to want to allow their own ability to speak for them until a decent scheme is formulated?

I don’t think they will. I cannot conceive that the BSB will force the issue. But, if I am wrong then God help us all. So, this is a good time to start talking about a better system than QASA and for the Bar to get behind the effort to design one. As Bernard Woolley says when Hacker asks him what he will do when the chips are down, “Minister, it’s my job to see the chips stay up”. Let’s try to see if we can do that.

Thin Cats Rejoice: Fat Cats On Starvation Diet!

The Rt Hon Christopher Grayling Lord Chancellor – holder of the oldest legal office in the known world, bearer of a tradition of centuries of hard-fought-for justice – has written in The Times today. The article has escaped from behind the paywall and I want to respond to it.

The pose is that this is a difficult and painful decision. I find it difficult to accept that is a genuine view, because:

• Mr Grayling refuses to meet the Criminal Bar Association. That is not in keeping with this being a difficult and painful decision. If it were a difficult and painful decision, there would be an obvious anxiety to spend time with each stakeholder and interested party. 
• The consultation does not focus on the Ministry of Justice at all. Only lawyers’ fees are targeted. No efficiency savings are even discussed.
• If the difficulty and pain were genuinely recognised, the consultation document would have to say something about quality and justice. It talks about neither. Moreover, responses are sought with “the overall fiscal context firmly in mind”. Assuming this to mean anything at all, it means that the consultation is not a consultation about the difficult and painful issues but about money.

The article – which is drafted as a statement rather than an interview and must thus be taken to be the Lord Chancellor’s expression of his own views in his own words – then proceeds to list a number of snide assumptions. That Mr Grayling considers this to be an acceptable way to deal with serious issues does him no credit. These snide assumptions include:

1. That lawyers are responsible for confrontational divorce. “I have seen many constituents over the years have their lives wrecked by a court-based system of confrontation which has led to huge legal bills…”. It’s odd – I had always assumed Tory philosophy to be based on taking personal responsibility, but apparently when faced with divorce, normal people immediately succumb to “a court-based system of confrontation”. 
2. That immigrants use legal devices to avoid returning to the countries they came from. Or, put another way, that potential refugees and asylum seekers ask the law to assist them. The late Margaret Thatcher once said that the one act she was involved in that really made a difference, was when her family accepted a Jewish child from Nazi Germany. Or – as the Lord Chancellor puts it, “is it really right to provide financial help to people who have no right to live in Britain to use every legal device they can to avoid returning to the countries they came from?” Maybe we just can’t afford to be compassionate conservatives, or even compassionate?
3. That crime is falling sharply. Ummm – up to a point Lord Copper. When even rapists are cautioned, when police are encouraged not to charge and when financial crime is largely ignored (ever tried to report one lately? I have. The police say to look to the regulatory body) you can get a situation where “activity in the criminal courts is falling sharply.” But of course, whether that situation reflects reality is quite different. Still, good news for bankers.
4. That price competition is about quality. Actually, even the Lord Chancellor cannot quite bring himself to say this. He says, “Price competition effectively throws the challenge to the legal industry to work out how best to deliver quality services at a lower budget.” Note the subtle difference. The challenge is to deliver quality services for less money. And if the challenge can’t be met? The MOJ has no plan B because the Lord Chancellor – in a quite breathtaking display of chutzpah (definition: the man who kills his parents and then throws himself on the mercy of the Court because he is an orphan) – says, ”if anyone has a better idea about how we reduce the criminal legal aid budget by an equivalent amount, then I’d be glad to hear it.” Remembering that he will not meet the Criminal Bar Association.
5. That barristers should work part-time. Apparently, although new practitioners arrive with enormous debts and are expected to work all the hours God sends in order to allow a Court to start at 1030 am (whilst only being paid for a 7 hour day) they should not regard the Bar as entitling them to full-time occupation. Why? Because the Lord Chancellor justifies his plan to make a 30% reduction in Very High Cost Cases (that is, the most complex and difficult work that exists in crime) on the basis that, “they provide lawyers taking part in them with extended periods of work.” Righty ho then – obviously I should pay for the privilege of such an extended period of work (lucky, lucky me) by working for less. If I were a Junior Barrister – for whom these changes are good news according to the Lord Chancellor – that will be £2.67 per day. As most VHCC cases involve fraud it won’t need me to tell you that this is 0.6% of the minimum wage per day. But I’m telling you anyway. The Lord Chancellor wants you to work for less money than must be paid to the foreign people with no connection to this country (other than a desire to live and work here) that he is so keen to deport.
6. That notwithstanding that after you have bought your cup of coffee you will have spent your whole day’s pay, you will still be prepared to hurl yourself into the challenges of defending (or prosecuting – where the defence lead the CPS follows) as if you were being paid, say, a fee that covered your food, travel, expenses, pension contributions (Lord Chancellor’s pension: £106,000 pa unearned), holiday pay and all the other things that barristers’ fees cover without allowing for your actual profit. That must be so because the Lord Chancellor says, “Those opposed to change have accused me of ignoring justice, of not understanding the importance of my office and of wrecking an international quality system. They are wrong.” So, if the system isn’t being wrecked, we must all be prepared to go on as before. Quality systems depend on quality people, motivated to do well. Isn’t that a Tory belief?
7. That the Bar is safe because the Lord Chancellor hasn’t introduced one case one fee. Actually, this isn’t a snide assumption – it is a specific point. The Lord Chancellor says,  “ It would also have been easy simply to introduce “one case one fee” for the Crown Court. But the Bar isn’t now in a position to compete and doing so would raise serious questions about the future viability of the Criminal Bar. So I am not proposing to do it.” But – and here I am imagining what might have been said by someone actually concerned to convey a truthful and accurate message - “But I am proposing to introduce competition for all Crown Court work which is not advocacy, so that when I include advocacy in the scheme next time – and please note I have not undertaken to preserve it as independent or ring-fenced – barristers will have had 3 years of fee reduction and will be in no position to compete for contracts, because those will be tied up by very large firms of solicitors or Tesco. The small community-based solicitors who might assist the Bar with the work the Bar does not do will already have been culled, as I am proposing that 1200 firms lose their right to earn legal aid monies overnight”. 

And even all of this pales into insignificance when compared to the bull point, which is not so much a snide assumption as a joke. The Lord Chancellor says, “But I was also mindful of the financial challenges faced by the Junior Bar. So while barristers at the top end of the income scale will face fee reductions, my proposals would recycle some of the savings so the Junior Bar should see a small pay rise.”

This assertion needs unpicking. First, the Junior Bar is everyone who is not in Silk. That plainly isn’t what the Lord Chancellor means, because he contrasts the “junior bar” with those “at the top end of the income scale”. So let’s assume that he means the very junior people – perhaps those below 7 years’ call (a well-understood cut-off point from the Bar’s perspective).

The weasel words are so weasely that the MOJ should call in Rentokil: ”That increase, which assumes that individuals continue to do the same mix of cases…” In other words, if you don’t progress in your career and do better work, you’ll get extra money. In the week that benefits are cut to stop people refusing work the Lord Chancellor incentivises barristers to stagnate.

But will you get extra money? No you won’t. You will only get the extra money if your clients plead guilty. Under the Lord Chancellor’s scheme, lawyers will be paid more if clients plead guilty. If you fight cases – if your clients, God forbid, assert their innocence – you won’t earn more money. You will earn much less money. This is how the Lord Chancellor apparently understands the importance of criminal justice and of not wrecking an international quality system.

I owe no fear or favour to the government and – professionally speaking – I do not care that it says my clients are guilty. I cannot be cowed by the Judge and I cannot be made to give my client advice the Judge wants. That being so, the government now proposes to penalise me if my clients want to assert their innocence and I do not persuade them to do otherwise.  The position adopted by the Lord Chancellor – the Lord Chancellor! - is no different in principle from that of Mr Justice Howel in Bushel’s case where the recalcitrant jury were locked up without food, water, fire or a chamber pot until they returned the verdict the Judge wanted.

How justice is to be done when the state insists that payment will only be reasonable if a barrister can get his client to plead is anyone’s guess. How justice can be done when the prosecuting barristers are subject to the same regime is anyone’s guess. Presumably the Lord Chancellor has in mind some sort of dutch auction where I agree to get my guy to plead to an insignificant assault and the prosecution agree to drop murder. We get more or less properly paid – after all, what’s a further 10% cut, say, between friends? – and the public gets, if not justice, then something the MOJ can call justice. And the MOJ will call it justice – if these proposals can unblushingly be presented as good news for the Junior Bar then the MOJ can call tossing a coin justice.

The Lord Chancellor ends his article by asking for proposals for reducing the legal aid budget by an equivalent amount. That, in itself, shows that justice and quality are not the issues he is concerned about. But I have some answers:

1. Cost your proposals properly, factoring in the delays to the system caused by depriving people of representation, their solicitor of choice and decent quality advocates (who will not work for £2.67 per day).
2. Quantify the cost of policing the vigilante justice that will assuredly result from these proposals. Just ask the Americans.
3. The see if the MOJ can save the £5 pa that will actually be saved. Perhaps it could use less paper for daft press releases?
4. Consult on the key question of whether the 11p per day paid by each UK citizen for the criminal justice system is something that UK Citizens would rather see reduced by about 0.1p per day to see your proposals enacted. Avoiding that key question is simply a way of manipulating a public consultation to get the answer you want. It is a wholly dishonourable way to behave and you should be ashamed of yourself for behaving in this way.
5. Instead of keeping monies confiscated from drug barons and fraudsters, and not prosecuting them with sufficient resources, do it properly and use that money to fund the Criminal Justice System. The Police estimate that of the £560m pa (5 times the value of the cuts you propose) available for confiscation, only £14m  is obtained.
6. Regard it as your job – for which you are paid a huge sum of money – to come up with a proper answer, even if it is difficult. The answer proposed in the consultation paper is evidently bad. It is not an excuse that it is the best you can do, because you are paid to do better.

Anger Management

There has been an interesting debate on Twitter about whether the CBA is too confrontational in its tweets (and perhaps its tactics). That is obviously mainly an internal matter – for what it’s worth I think the argument is pretty irrelevant, because people who try to smear the opposition to QASA and the proposed cuts will use whatever is going. The proposition that they are actually trustworthy in terms of having an open and transparent debate has, to my mind, been conclusively answered by their actions to date. Moreover, the CBA itself asked the question which, to me, contrasts favourably with the passion for openness and justice which characterises the proponents of QASA and cuts and manifests itself in an absolute unwillingness to engage or debate. I have always preferred people who act out their commitment to those who babble about it instead.

Francis FitzGibbon QC (who I trust won’t mind being linked), said something with which I entirely agree:

Show the anger, but be smart. No personal abuse. Positive messages.

But it got me thinking about what sort of message is positive. Obviously, arguing the case against cuts and QASA is a positive message. And, in my view (and Francis’s apparent view as well) expressing anger is a positive message as well. First, it makes clear that the issues are serious and are deserving of more than the lectures/silence with which the BSB is currently facing the crisis in the profession. Secondly, it may make you feel better to get it off your chest. Thirdly, it can serve to reassure other people that they are not alone in feeling so angry. Fourthly, if used wisely it can be a galvanising emotion. Fifthly, there is a moral case for saying what you truly think about immorality.

I am not for one moment advocating public bad language, personal abuse or hate campaigns. But confrontation is sometimes necessary and, providing that the fact that the ultimate aim is to win an argument is kept in mind, it seems to me to be no problem that some fairly sharp words are exchanged. This is important – much better to be genuinely cross about this than – for example – Leeds United’s wholly lamentable performance this season.

So – I am furious about what is being done to my profession at the moment. This is why.

First, I see my own livelihood and the lives of those I know, respect and like being threatened for no particular reason. I am quite unapologetic about this. People in power go on and on about community and society. The Bar is a community, which substantially contributes to the wider society and to its own more vulnerable members. Consequently, when I see people in my community being put at risk simply because of the community to which they belong, I get cross about it.

Of course – and this is oh such much easier to say if you are not amongst those included in those affected – the Bar also has to make sacrifices for the sake of the wider society. I agree with that but I am also entitled to look at the evidence. 10 years ago the Bar was paid, for publicly funded work, about 50% more than what it is currently paid. That reduction has been achieved by years of fixed fees, allowing inflation to eat into earnings, coupled with 2 sets of reductions in the last 2 years, and amplified by the constantly changing fee structures. I know of no other profession, and no other sector of society, that has been treated in this way.

Why then were fees fixed? It seems either that we were all paid more than we were worth for all those years, or we have simply been picked on as people who can afford to be paid less even though the work we do does not merit the reduction. I have not heard anyone say the former, so I am entitled to ask whether we have already made our contribution.

But, even assuming we have not, I cannot think of any other sector of society that has suffered the last 2 pay cuts (say, 25% and I suspect I am underestimating) in 2 years. Isn’t a quarter of income enough? When you add to that what now seems to be a proposed 35% further cut (for the last day of a long fraud I will be paid a munificent £5.97 so, if I want to eat I will literally have to pay for the privilege of working) it seems to me that we have passed way beyond barristers bearing their share. The reality is that we have been picked on, for no better reason than that we can be said to be fat-cats by people whose regard for truth would disgrace my (proven guilty after a trial in which they gave evidence) criminal clients. Because we are small and cannot mobilise public support without huge expense, we can be mistreated.

That makes me angry. It is bullying. It’s cheap. It rests on half-truths, innuendo and smears. It also – and here’s an irony for you – rests on ensuring that the case for cutting our fees doesn’t not get anything like the scrutiny that legal cases get. If the facts behind the assertion that we were overpaid were subject to neutral scrutiny they would be seen for the nonsense they are.

Secondly, I am angry because the public are going to suffer. When I started in practice in 1986, it made very little difference whether I did publicly funded criminal work or private work. The remuneration was almost identical. I am perfectly happy to accept that this should not have been so and that state funding should be less than private funding, providing that no one then complains when people who want to maximise their earnings don’t want to do state funded work.

Nowadays, the differential is in the order of 3 to 1. And I still do criminal work, because I am actually committed to it. It is what I mean by human rights – that is to say the right not to be burgled, not to be punched in a club and not to have your hard earned property stolen when you put it up for sale in your shop. It also encompasses the right not to be wrongly charged or convicted – not necessarily in the sexy “this is a major issue of human rights principle” way, but in the gritty, often depressing and frequently tedious “let me look at the evidence against you, get your account however inarticulate you may be and then speak on your behalf” kind of a way that makes up the day-to-day life of a criminal practitioner.

That commitment is shared by thousands of barristers like me and – even though there is plenty of pontification about falling standards – I am convinced that every single one tries as hard as they can every single day. You might have thought that would be something to be celebrated. Instead, that sense of vocation is – inexcusably – being taken for granted and abused in the belief that such people will work in the same way for much, much less than they are being paid at the moment.

I don’t believe that will happen. This isn’t a question of money, but of message. The message being sent is that the work we do is not really valuable. We stop the dregs of society being rightfully convicted and leach the public for doing so. How on earth are people supposed to be proud of what they do, if that is how the government chooses to characterise them? And why does anyone think they will be able to carry on making the effort they currently make once that mindset is established?

You will note that this argument is not the argument that says good people will stop doing crime. I think that will happen as well, but my concern is that good people will carry on doing crime in a state which is demotivated, sad, uncaring and unconvinced that they are able to do their job properly. That is bad for them and bad for all of us.

Thirdly, I am angry because what is happening is morally wrong. It is wrong in two distinct ways. First, proposals to alter the system should put quality and justice front and centre. The issue is not whether we can afford justice: it is that we absolutely can’t afford not to have it. The current proposals have nothing at all to do with the quality of legal representation. David Wolfe QC must be enormously embarrassed by the fact that the issue of quality – which he and the BSB have been parading as the reason for QASA – isn’t even touched on in the current consultation. There are 36 questions: not one is about quality. The argument that the government cares one whit about quality (save as a possible legal impediment to its plans) is conclusively shown to be wrong. This is about making legal representation cheap. That isn’t because we are overpaid. It isn’t because we must bear our share. It is because – in the mind of the government and the civil service – criminal work does not matter. The process is important because it enables it to be said that we have a fair system. Underneath the facade, what actually happens is irrelevant.

That stinks to my way of thinking.

Secondly, it is wrong because the whole debate is based on misinformation and misrepresentation. Any argument which rests on those two pillars can be pretty conclusively assumed to be wrong. And the method of advancing it does nothing but discredit to those who do so. Such methodology obscures debate. It makes it less, not more, likely that the ultimate answer will be wrong. It runs absolutely contrary to everything I regard as decent and honest. It is inimical to the standards of my profession as I understand them.

The use of such methodology undermines public confidence in the profession, in the justice system and – in due course – in the machinery of government. And politicians wonder why they are not trusted.

Fourthly, I am angry because the current proposals endanger us all. I am a Jew. And Jews are very good at knowing what happens when societies loose respect for law and order and resort to sorting out their own disputes with the type of alternative dispute resolution that doesn’t involve a mediator. I do not mean to sound alarmist, but when you exclude millions of people from legal aid you are delivering an appalling message. That message is that the government does not conceive of it as its duty to enable you to access neutral dispute resolution via a fair and transparent legal process. When you back that message up by saying that – for the sake of saving a tiny amount of money in terms of the overall context – one of the areas to be targeted is judicial review, which is how individual citizens can seek to resist government power, what are people acclimatised to this type of restriction going to think about their relationship with those who rule?

Eventually, people will internalise these messages. Most of them will simply simmer with resentment and live with the consequences. One of those consequences will be that they lose faith in the state’s ability to assist them with the mundane and tedious disputes that most of us encounter from time to time. For most people, that will merely mean that they teach their children that those who rule us do not care about us. For some the temptation to sort it out for themselves will be too great to resist – a prospect increased by the simultaneous message that law and order isn’t actually that important any more so you probably won’t get caught. For a few, that prospect will be welcomed and – as in any society that encourages people to resolve disputes privately – violence will be the preferred method of resolution.

This is the inevitable consequence of the lead given from the top. When Theresa May (and Blunkett before her) say that the Courts are wrong, the message they send is that the appeal system doesn’t work, and hence the legal system doesn’t work. That is irresponsible and I am genuinely revolted by it. The civil servants who serve these people are equally responsible. The current proposals come from out of the same hymnbook. The papers which have a political agenda, gleefully join in the pursuit. All those people are playing ducks and drakes with the future, for the sake of political power and money today. I am angry that those people – and they are bright enough to know what they are doing – are the same people saying that the job I do isn’t worth the value that society has always previously accorded it. Before now, if lawyers were derided (and they were) it was because they did not assist justice. That is not the argument currently being advanced – that argument cannot be advanced. The current argument is that the justice we promote is too expensive – except for people who can afford it.

It is worth pointing out that the job I do – unlike other jobs – involves a lot of work for free. When it pays me a daily rate, the state pays me for a 7 hour day. 5 hours court time, 1 hour for lunch, and 2 hours work. What it gets is at least an 8 hour day, frequently a 10 hour day and, regularly, a 16 hour day. I do that, so that the Court can always finish at 430pm and start at 1030pm the next morning, regardless of what I have to do to be ready for that. I get no money for that at all. The proponents of the fat-cat argument, of course, know this. That they never say it is one more instance of their thoroughgoing untruthfulness.

What is happening, in short, is a betrayal of my country’s values, my society, my profession and my own efforts – in that order. Of course, such high-falutin’ statements are easy to sneer at. And of course, my own self-interest aligns with my argument. All I can say about that is that it does not make the argument wrong. If people would rather play the man than the ball, it rather tends to suggest that they have taken the easiest path. I do criminal work despite having a civil practice as well. I review for the pro bono unit. I work for free on a regular basis (please don’t tell anyone). If anyone would like to tell me that my argument is dishonest, or unduly influenced by my own interests, they know where to find me.

The bottom line is that some people will not be able to earn a living that supports themselves and their families in the style to which they have committed themselves in good faith. Will the BSB prevail on the banks to lend the money for a practising certificate, or will they tell barristers to default on the mortgage or sell their house, if they can? That will be a real dilemma for lots of my colleagues, who will wrestle with it whilst simultaneously being attacked for doing the job they do and having the temerity to want to be paid properly for it. For younger barristers, the choice will be between a job as an official parasite and the same job at private rates as a valued contributor to the resolution of disputes between rich people or organisations.

In the long term we will not achieve justice as well as we do at the moment. Given that achieving justice is the prime reason I do this job, that makes me angry. That a country doesn’t achieve justice through its legal system is one thing. The aim is always to improve. That a country should deliberately go backwards is quite another. I honestly never thought I would see a Lord Chancellor write about legal aid without talking about justice or quality and it makes me angry that I have.

Is This The Best That Can Be Said?

I was alerted by a retweet from Baroness Deech that David Wolfe QC had blogged in favour of QASA. David Wolfe QC achieved considerable publicity when he was 11 years call by announcing he would not take silk and then, in 2012 when he was 20 years call, did so on the basis that he could not otherwise service his clients fully and was loosing work. His entry on his Chambers’ web site states that he believes passionately that public bodies should act in a fair and open way. He was until recently a Commissioner of the Legal Services Commission and a member of the Legal Services Board (the body which wants to abolish the cab rank rule). According to his page on the Chambers’ website, he does not do criminal work. I wondered whether this would be the beginning of a fair and transparent debate. I am afraid I don’t think it is – but you must judge for yourselves. This is what David Wolfe QC has written; my responses are below.

We will never get close to having an “independent, strong, diverse and effective legal profession” (which section 1 of the Legal Services Act 2007 sets as a regulatory objective for the regulators) if advocates providing a high-quality service to their clients remain undermined by others who are not even competent.

In my view we have one already. The government agrees. This is what Chris Grayling said in March 2013:

As a government we recognise the importance of the UK’s legal services sector and the excellent reputation its legal services providers have at home and abroad. The sector contributed £20.9 billion to the UK economy in 2011

The argument David Wolfe QC is advancing seems to be that incompetent advocates prevent the profession as a whole meeting statutory requirements. That is an implicit assumption made without any evidence. It does not rest on proportions of incompetent versus competent advocates. It does not manage to provide a definition for ‘competent’ or incompetent’. On its face the argument is bad.

Let’s not fool ourselves: we all know lawyers – including barristers, and including criminal advocates – who are just not up to it (perhaps they never were, perhaps they have lost their touch) at all levels, from magistrates’ court practitioners to QCs. The most senior judges complain about it; the Attorney-General notes the cost (not to mention harm to the public interest) of appeals necessitated by poor trial advocacy.

It is of course true that some people – perhaps because of family circumstances, illness or personal pressures (I’m not sure I can sign up to just ‘lost their touch’, which seems to me to be overly crude and rather unfeeling) are not performing as they would wish. It is equally true that some people go over their competence level regularly. That is why a proper quality assurance scheme would assist (QASA as first proposed was a system for warning advocates that they needed to up their game). But, as support for the argument that the profession as a whole is not meeting statutory requirements, the point is a huge stretch.

Neither the professional obligation falling on us all only to take on what we can do competently, nor market forces, has dealt with the problem.

Hasn’t it? As I say we have no evidence that this is so and David Wolfe QC provides none. He has an anecdotal claim that senior judges complain (not to him, it appears), but whether that is a generalised complaint or a specific instance I don’t know. Nor do I know the result of any such complaint, whether it has been investigated and whether the person criticised was able to respond. All of this falls within my definition of fairness and openness. There is a shed-load of difference between the odd disaster, which can and should be dealt with by the profession, and a far more generalised complaint that the profession is failing. David Wolfe’s anecdotal accounts are of the latter: they morph – unacknowledged – into the former. I have to say that this is not a type of argument which commends itself to me.

Nor will they, alone: advocates still regularly get instructed to appear in (and take on) cases beyond their competence. We simply cannot credibly claim that we are all competent to do the cases we all currently take on (though of course, as trade unions, the Criminal Bar Association and Bar Council will do their best to protect all their members and still make that claim).

The same trick has been played again. It is correct that we cannot all claim to be competent to do all the cases we currently take on. The shift comes in the allegation that this is a regular thing. Is it? The BSB has just released the latest conduct committee report showing 133 new cases in the last quarter of 2012. That equates to 520 cases a year. 82 of those cases – 328 a year – were external complaints (i.e. could possibly be of people acting beyond their competence). Even if all external complaints supported David Wolfe QC, which they obviously could not because such complaints include dishonesty and misleading the court, 80% are dismissed. Accordingly, there can be no more than 65 cases per year which support this thesis. There are 12,000 barristers doing goodness only knows how many cases each per year. Let’s say it’s 20 cases each, which is likely to be a massive underestimate. That makes 240,000 cases each year. Now let’s say that only 1 in 10 people actually complain, so there could be as may as 650 cases of acting outside competence per year. That’s one complaint for every 369 cases. Is the enormously troubling and expensive machinery of QASA (not to mention what a bad scheme it is) justified by that? Not in my view. And such facts as exist to actually make the case are – to coin a phrase – fairly and openly available. Why haven’t they been examined?

So no surprise, particularly in an oversupplied market, that the funders of most advocacy in the criminal courts – the new Legal Aid Agency, the Crown Prosecution Service etc – only want to spend taxpayer’s money on advocates who have been assessed as able to do the job properly. This is not about marking out excellence; it is about ensuring a minimum competence.

That strikes me as wrong. The CPS don’t want solely spend money on a competence basis. They are paid for keeping work in-house and they pay a salary premium to employees for being Higher Courts Advocates. The CPS’ own Inspectorate’s comments about the use of such advocates based on value alone aren’t exactly a secret. So the evidence is that quality is not the priority it ought to be, even now. The priority is money. The new legal aid consultation, doesn’t even pretend otherwise. The Ministerial Forward does not use the word ‘quality’ once. This is not about minimum competence – a phrase which creeps into David Wolfe QC’s article at this juncture without any argument that minimum competence is lacking at present. It is about minimum money. The new proposals are going to break the system, which will result in more wrongful convictions and acquittals and a lessening confidence in justice, which will corrupt society. The divide between the fees paid for representing people accused of really serious crime and prosecuting those same people, and those paid for representing people, for example, opposed to a badger cull or those opposing a Roman Catholic School because it isn’t humanist (to pick 2 of David Wolfe QC’s recent cases) cannot survive public scrutiny without undermining confidence. It may well be that David Wolfe QC’s own fees for those cases were on a par with the fees paid to criminal practitioners for defending a case of less than 2 days (currently an absolute maximum of £2,856 plus £1.63 per page of prosecution evidence, plus £6.53 for each witness over the first 10 witnesses, to include all preparation – however lengthy and however many defence documents there are), but – unlike in a criminal case – his opponent’s fees will not be so limited. The new proposals will also break people. Real individuals with real lives and families. This is all a subject for another time. But it is offensive that QASA is argued for on the basis of  quality, when that is plainly neither its genuine purpose nor its likely result. And the offence is nor lessened by the fact that the argument comes from a barrister who does not work in the field of criminal law, is not subject to the same financial constraints and whose work is not going to be touched by QASA for the foreseeable future.

Is that so wicked? The public would rightly insist on it. So too surely would the competent barrister, fed up of losing work to others not up to the job, or of sitting in court watching justice not be done because another barrister is out of their depth. We’ve all been there. Quality assurance would be happening even if competitive tendering was not being contemplated.

But it isn’t. Let’s take the field of public law, in which David Wolfe QC practices. Adopting his argument for the moment, the temptation to take work for which you are not competent must, surely, be greater in public law than in crime, simply on the basis that there is more money to be made in the latter field. Yet the very market forces and professional obligations which David Wolfe QC says do not work for criminal law seem to work just fine in public law. If QASA were justified on this ground, it would be required for every area of practice. And public law – being a relatively small field with highly trained Judges and a public interest element almost as great as crime – would be an ideal area to pick for a pilot project to see if QASA delivered. I’m not hearing much of that… In reality, the Bar delivers an extremely high level of quality at present and the public is happy with that quality. There is no public pressure for QASA.

If the regulators don’t do it (protecting privately paying clients as well as public purchasers) the Legal Aid Agency (and other big purchasers) would likely set up their own systems (and refuse to contract with any barrister who does not meet their quality standards, as would any other public purchaser of services). They would likely outsource that work. Would we prefer Capita or G4S to set up and run crime QASA? I doubt it.

This is the BSB argument. If we don’t accept QASA a worse scheme will be imposed. Of all the arguments I have heard, this is the worst. Why? Because it pre-supposes that the purpose of a quality scheme is to threaten the professions and drive down costs. Otherwise there could not be a ‘worse’ scheme. The answer to David Wolfe QC’s question is that it does not matter who runs the scheme. What matters is whether the scheme delivers quality assessment. QASA does not. And QASA doesn’t improve because an alternative scheme could be administered by a commercial organisation (although the contempt for commercial organisations inherent in that position sheds an interesting light on the thinking). QASA is a bad scheme. It doesn’t deliver. Although David Wolfe QC’s contribution – astonishingly to my way of thinking – doesn’t focus on this issue at all, that is still the reality.

So maybe the fact that the regulators are doing it is not so bad? Barristers might have wanted the Bar Standards Board (BSB) to go it alone. But, in reality, it would have been chaos for the chartered legal executives, solicitors and barristers who appear through the criminal courts to be assessed by separate but overlapping schemes. A combined scheme will put to bed the solicitor-advocate-bad, barrister-advocate-good debate. We also need to remember that there are about twice as many solicitor criminal advocates as there are barrister criminal advocates: the main regulator of criminal advocates is the Solicitors Regulation Authority. So the BSB had to work with the other regulators in the Joint Advocacy Group (JAG).

Work with – of course. Accept nonsense – of course not. Moreover, this argument also rests on the unstated position that this is a bad scheme but that’s what we have to have, because that’s all anyone else could agree on. Isn’t it our job to be fair and open about this? If the professions can’t design a workable scheme together then why not have competing schemes? Let’s see what the users go for.

Incidentally, of course, if oversupply is reduced, then those who are left (i.e. the truly competent ones) will be busier, and will be better able to resist downward pressure on pay rates. But let’s not be self-interested about this!

It’s obviously tempting to look at an argument which is right and self-interested and only point to the self-interested bit, thereby diminishing the fact that the answer is still right. It’s tempting, but in my view it’s wrong. It avoids real assessment of argument and replaces it by sneer and smear. I went to the Bar because I believe in fairness and openness – and that is only achieved by opening competing arguments to neutral, unbiased assessment. Arguments which seek to prevent such assessment are shabby. If the aim is to help the truly competent, then why not run a proper scheme, let it compete with other schemes and let the best scheme win out? This isn’t about oversupply as a bad thing. It is about using the number of barristers to reduce earnings. That’s unashamedly political and it may be government policy. If so, we will have to put up with it. But don’t, for pity’s sake, dress it up as an argument about quality.

We might not like every detail of what the JAG has proposed for crime QASA, and we might be sceptical about how aspects of it will all work in practice, but it has the potential to weed out incompetent performers, whoever they are.

I don’t run my cases because they might potentially win. And I don’t tell my clients that it’s worth running with a case (whether they pay or the state pays) because it has potential. And I don’t think a different standard should apply to how my profession is governed. This isn’t an argument worthy of the name.

So why do vocal opponents argue for a boycott (#notoQASA etc)?

Because QASA as currently designed is rubbish.

(1) Plea-only advocates (POAs) If POAs were currently banned, it might make sense to argue against a proposal newly to permit them. But they already exist. Boycotting a scheme which will subject them to quality assurance is going to look pretty daft (after all, the cry for a boycott is not a cry for a more onerous crime QASA scheme). And given the ratio of advocates to full trials, many (possibly most?) current POAs are actually likely to be barristers.

This argument misses the point. I think it does so because David Wolfe QC doesn’t practice criminal law. POA’s don’t exist. What exists is a culture of (some) solicitors taking cases until it is clear the client won’t plead guilty and then handing them over, because they will not represent a client at a hard-fought trial. That regularly means that avenues of enquiry helpful to an innocent accused aren’t explored until very late in a case – perhaps too late. It undermines confidence between client and representative and thus in the system. It sets up a conflict between a client who wants to take advice and wants continuity of representation, but who cannot be sure that the advice is being given dispassionately in his or her own interests. That conflict – which is not based on any stupid assumption that a solicitor cannot be independent, but rather on the existence of a divide between what a solicitor is allowed to do and what the client should be advised to do – is multiplied when the client may actually want his solicitor to represent him. That is not something that we should encourage – quite the contrary. Yet QASA will turn this culture into the approved way of doing things.

(2) QCs It is argued that crime QASA should not apply to QCs because they should all be presumed competent to undertake criminal trials at all levels. Even people who became QCs ‘crime’ recently cannot be assumed competent to do criminal trials. After all, the QC system is driven by references arising from ‘cases of substance’, which could be all cases in the Court of Appeal and need not include any trials. So even a recently appointed QC ‘crime’ need not have demonstrated their ability in criminal trials.

Yes. And the moon could be made of cheese. But it isn’t. There are, as far as I know, no silks in this category. If there were, one doubts whether they would be as stupid, as venal and as incompetent as David Wolfe QC implies. Instead, I would expect – and be confident that – a silk offered a case beyond their competence would turn it down. I don’t know why David Wolfe QC thinks otherwise. These are people of probity and integrity and it does no one any credit to treat them as if they were shysters, desperate for a fast buck at the expense of the public.

But even if new appointees could be assumed competent for all trials, what matters for QASA is whether the same can be said of all practising QCs (i.e. regardless of when they became QCs and on what basis). Of course it cannot. The loose linkage of the QC award to work type is relatively recent, and there is no reaccreditation. Can someone who, 20 years ago, was a brilliant family lawyer and became a QC on the back of that, be assumed to be competent to do the criminal trials which they take on at all levels now? Of course not. They may (still) be brilliant, but they might not be, or not in crime. Even someone who did all crime at the time they became a QC may have lost their touch. We all know of examples. No rational QASA scheme could simply assume all QCs to be competent at the highest level.

No – you could replace the expense and risk to the QC ‘brand’ by a presumption which could be rebutted. Then we could see how many silks are really superannuated. Yet again, an apparent lack of sophistication insofar as criminal practice is concerned has led to the point being missed. What QASA does is line up silks with senior juniors. It is – again – about reducing cost. Either silks drop their fees (and plenty of them will then leave crime alone, depriving the system of top-end performers) or they will accept lower fees. If we grant the implied assumption that lots of silks are not really up to it, which ones will stay doing crime at lower rates and which ones will do other work? QASA will defeat its own purpose by forcing out the good.

But, in the end, a reality check: if a QC currently working doing big criminal trials is competent do those trials, is it such a burden for them to complete the forms and pay the fee to prove their competence in a system which will apply to everyone (and which will thus be weeding out the incompetent at all levels, in the public interest and in the interest of the competent)? Surely not.

It’s not the burden that is objected to. No one has said this and it is not right to argue in this way.

(3) Case levels to be agreed between the advocate and the solicitor I agree: that cannot be right. It’s what the last JAG consultation proposed but will the regulators stick with it, and – if they did – would the Legal Services Board really sign it off? I doubt it. But even if they did, is it so fundamental that it justifies a total boycott? Clearly not – that would be baby out with the bathwater, for sure.

Oh to be in the position where I did not have to trust 2 lots of regulators and the Legal Aid Board to ignore their own recommendation. It would be nice to work in an area where I was not reliant on that – say public law. For hundreds of people who see what is proposed by their own regulator in black and white it is, frankly, insulting to say ‘don’t worry – it will never happen.’ And apparently, the fact that your income will then depend on your willingness to agree that a case is less serious than you really believe is not a deal-breaker. If we all just stand back from that a minute it means this: David Wolfe QC says that QASA should be agreed to, even though there is potential for the quality assurance element to disappear in the blink of an eye, when the solicitor decides that the quality demanded from a level 3 advocate can be replaced by a level 2 advocate. How can QASA be credibly said to be about quality when that can happen? I simply don’t understand.

(4) Judges as assessors Moses LJ argued powerfully that judges should not be assessing and reporting on the competence of the advocates who appear in front of them: apart from anything else advocates may play to the judge at the expense of their client. I share his concern. But isn’t that exactly how the QC system works? References from 12 judges (from cases ‘of substance’ in the last two years) are required. Perhaps that needs to change too?

No – you don’t tell the Judge you are applying for silk until after the case. You can ignore the case where you fell out with the Judge. Moreover, becoming a QC is a rank within the profession – it does not dictate what work you can do. Nor are Judges referring you for silk having to deal with 168 separate indictors. Nor are they trying to assess quality by reference to QASA’s miserable parameters. Instead they are saying what they actually think about your ability. Nor is it compulsory. No one has to apply for silk. But perhaps those differences are only apparent to me.

But anyway, the documents relating to the JAG rather suggests it was the barristers involved who insisted on ‘judicial assessment’ in crime QASA and the solicitors who argued against (maybe it will favour barrister advocates over solicitor advocates?). The judges leading the process have also seemingly insisted on it. So a boycott on this basis would look particularly ridiculous.

I remember being led in the Divisional Court by Michael Harrison QC. We altered our submission because we thought we hadn’t done it terribly well the first time and Laws LJ picked him up on it and asked him if there wasn’t a contradiction. Michael used the words attributed to John Maynard Keynes, “When my information changes, I alter my conclusions. What do you do, sir?”  The information that has changed, of course, is the firstly the fact that QASA has become a process by which a barrister’s ability to earn a living is to be fixed. It was not always so. Initially it was a way of ensuring quality. Secondly, as the scheme has emerged, it is clear that Judges are not to be allowed to determine what quality might mean. Instead, they are to be trained in what the BSB thinks quality means.

Some people have suggested that a boycott (or strike, or lock out, call it what you will) could be defensible in the media. Dream on. John Humphries will eat alive anyone brave enough to try and defend it to a critical public audience. All of us will end up looking foolish.

If John Humphries is putting a case, then why can it not be answered honestly? Boycotting QASA isn’t a strike. It is not signing up for a scheme because the scheme is lousy. If the he BSB were then to say that no one who did not sign up could work, that would not be a strike. It would be the BSB ensuring that the system ground to a halt because it could not find it within itself to admit that it had made a mistake. This argument elides the opposition to QASA with opposition to a proper scheme. That is a mistake.

Dressing up objections as being on the basis of the public interest will simply not wash when you have the most senior judges, the regulators and the politicians all saying that the public interest requires crime QASA.

Why? Are all politicians and regulators to be taken as acting in the public interest? That should make for an interesting discussion in the context of David Wolfe QC’s practice. And, if he doesn’t find it true at work, then why does he feel able to tell me that it is true for me? As to Senior Judges. As Moses LJ has made clear, they don’t all. And there is a massive difference between support for a scheme and support for this scheme.

So let’s be realistic. Crime QASA is going to happen.

I think this is right. But it isn’t the issue. The issue is whether it is supported by the Bar. It isn’t and all the current indications are that this will remain the position.

Of course it could be improved. But my biggest concern is that it might not be operated robustly enough to get rid of the incompetent advocates who undermine the rest of us (including financially) thus turning into a waste of time.

There isn’t an ‘us’. That word ought to be ‘you’. And if that is the biggest concern then a moment’s reflection might suggest that the way forward is to listen to those of us who practice criminal law. Because our biggest concerns are that QASA will not work at all as regards quality but will work to ensure that we have less control over cases, work for less and are left without a practice because we can’t compete when it comes to BVT.

QASA will also provide for ‘career progression’ for advocates, something currently largely lacking; and help promote equality of opportunity for people from groups which are under-represented in the profession, particularly at higher levels.

No, it won’t. Career progression will continue to depend on reputation, as it always has. We have had CPS grading for years and no one ever thought more highly of you because of your CPS grade. As for diversity: I know it’s a sexy term but really? Fewer pupillages and less money to fund them are not optimal conditions for diversity.

In times to come, barristers starting out will be able to aspire to move up the levels as they publicly demonstrate their quality regardless of who they are. QASA is vital when it comes to the “an independent, strong, diverse and effective legal profession” to which we are surely all committed.

The implication that people are currently held back because of “who they are” is nasty. If you are going to say that about your own profession it would be good practice to offer some evidence for an unpleasant allegation. The proposition that QASA – as opposed to the efforts put into recruitment and scholarship funds – will make the difference is either unintended or ineffably self-important.

The contemplated boycott of crime QASA will undermine all of those things (and certainly the interests of competent advocates, particularly barristers, everywhere). So let’s embrace the principle of QASA and then work to extend and improve the current proposals over time.

Let’s hear it for the guinea pigs, in other words. My own view of what is expected from a profession of which I am hugely proud, because the vast majority of us aspire to the highest possible standards of behaviour even when our own interests are at stake, is that we will get the system right first, and ask our colleagues to test it second. 

With any luck, other areas of work will also be covered in due course (albeit, presumably, modified to reflect the fact that other areas of practice are less focussed on trial work, or the trials are very different to a jury trial). That way those of us working in other areas can publicly prove our competence too.

I know it’s an easy shot but honestly, if you stick your chin out you must be expecting it to be punched – you first. If David Wolfe QC would like to respond, I make the customary offer of an unmediated slot on this site.