Skip to content

The BSB Joins The Debate

May 5, 2013

powdered-wig-debateBelow 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.

About these ads
One Comment leave one →
  1. Scott Wainwright permalink
    May 5, 2013 10:12 am

    Patricia,

    You portray QASA as an umbrella with which ‘we’ may arm ourselves to protect against an impending storm. If, as you claim, QASA can properly be characterised as an umbrella, which I very much doubt for reasons I shall elaborate upon, it is an umbrella which is sadly full of holes.

    The reason I suggest it cannot properly be portrayed as an umbrella is the fact that it will not, as you claim, provide any protection to the public. Indeed it may in fact do just the opposite. The concept of assessing POAs at an attendance centre against level 2 competencies and then letting them loose on the public to take pleas at level 3 is a wholly flawed one. In order to be able to advise a client as to the appropriate plea one has to have a working knowledge of the trial process in order to be able to evaluate the evidential and procedural implications of proceeding to trial. Simple. POAs will not have that. POAs taking pleas at their allocated level is objectionable in and of itself, but allowing them to take pleas at the higher level is dangerous and misconceived.

    A further rupture in the lining of the QASA ‘umbrella’ lies in the self assessment of levels. This defeats the entire system. Why bother grading advocates when the system allows them to make a case fit their grade? Your confidence that the system will not be abused in this way is at best heartwarming and at worst naive. When one then factors in the proposed new fees structure which makes it in the financial interests of advocates (or more pertinently their employers, as in -house advocates take a high percentage of pleas at PCMH) one has a system ripe for abuse. This does absolutely nothing to protect the public, quite the contrary.

    Finally you claim that throwing away the ‘umbrella’ will not prevent a ‘soaking’. In this case however arming ourselves with this particular porous umbrella will hasten the onset of the storm. Why? Because as Simon Myerson QC has previously pointed out it will lead to the gutting of the professions. PCT will be the end of the independent criminal bar and of the provision of criminal legal aid as we know it. The idea that the MoJ could enfranchise Stobarts without some form of QA is fanciful. If QASA, or an equivalent less fundamentally flawed scheme, were to be implemented there would be nothing standing in the way of the completed destruction of our fine criminal justice system.

    You are correct in one sense, there is a storm on the horizon. However we will not avoid a soaking by arming ourselves with a defective umbrella to be used by the MoJ in a ceremonial raindance.

    This is a storm which the bar and the public at large would be best advised to brave alone.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 2,525 other followers

%d bloggers like this: