The government wants barristers to be quality assessed. Actually, this is a good idea if it is done properly. At the moment it isn’t being done properly. However assessment is being introduced nonetheless, and it seems tolerably clear that the purpose of its introduction is to enable the government to say that all advocates have passed such an assessment. The government needs to be able to say this because the ultimate plan appears to be (in fairness to the government, they aren’t admitting it – yet) to introduce something called Best Value Tendering. That means that legal aid contracts will be given to the organisation which does the most for the least money. A moment’s thought will tell you that when the mumbo jumbo about ‘economies of scale’ and ‘vertical integration’ is dissected, BVT means paying people less.
In order to assist with this, the likelihood is that the government will introduce One Case One Fee. A moment’s further thought will tell you that this is the end of proper fees for the Bar. The work will be hocked to the lowest bidder. If the contractor is a solicitors’ firm, that will likely be the solicitor. It may, of course, be someone unfit to do it. But wait! They are quality assessed. Everything is all right (except for the poor defendant, the overworked court system and justice).
Enter QASA. But QASA, as originally conceived, had a flaw. That was that a lot of solicitors did not want to be assessed alongside barristers. They would not pass an assessment based on how they did trials. The ‘compromise’ which has been reached (not by the Bar) is that there will be a category of people known as Plea Only Advocates.
The difficulty here is not just conflict: “Hello Mr Blogs. Will you plead guilty? Did I forget to mention that my firm gets paid a lot more money if you do?” It is that pleas can frequently be difficult and require representation every bit as effective as that required for a trial – not to mention that people may wish to change their minds. It is also that enabling one class of lawyer to cream off a particular type of work, without risk is obviously unfair. The type of BVT contracts the government wants means that barristers will not be able to get them – even the largest set of Chambers will not be able to administer a scheme for a number of towns and cities.
Unsurprisingly, the Bar is saying no to QASA in large numbers, having identified that, without QASA, it will be hard for the Government to paint its plans as anything other than reality. Reality is forget the quality – just look at whether a defendant has someone to ‘represent’ them.
There are ways to cut the cost of legal representation. The Bar has suggested them. For example, allow defendants in fraud cases to use the money they have to pay for their own defence. That money does not go back to victims at the end of a case. If confiscated it goes to … go on, have a guess. Equally, as the Bar’s calculations (prepared by independent experts) have shown, many of the current proposals will not save money at all. Removing legal aid in most civil and family cases will force people to represent themselves, double the length of trials (that is my documented experience when sitting), double the number of trials because cases won’t settle, bring the Courts to a halt, set back justice, upset millions of people and save not a penny. But no one listens. Until it happens – by which time Chris Grayling will doubtless be lecturing and collecting his MP’s pension and David Cameron will be in the Lords – the warnings about the destruction of a truly good system of justice will be painted as fat cats protecting themselves.
Although the Bar is likely to say not to QASA the BSB has decided to make it a professional offence to accept a publicly funded brief without being okayed under QASA. I am quite intrigued about this: I have been awarded silk, and practised in silk for 10 years; I sit on the BSB’s Pupillage Committee; I have done 6 years on its Conduct Committee; I have volunteered for the Bar’s ethics helpline, advising other barristers with ethical difficulties; I review cases for the Bar Pro Bono Unit. All of the latter (unpaid) tasks involve exercising my professional judgement in relation to quite serious issues. However, if I won’t be QASAd I can’t do even the simplest criminal case – although I can try serious sex cases.
The foolishness of that decision is emphasised by the fact that the BSB – as a Regulator – should not really be threatening large numbers of those it regulates. If quality control is a good thing then that is only if the scheme is a good scheme. The BSB isn’t pretending it’s a good scheme – merely that it’s better than the one the government will eventually force us to accept. What it is to have a crystal ball. Anyway, why just one scheme? As our Lord Chancellor believes in letting the market decide (such a refreshing change in believing in, say, letting the legal system be the best we can attain), then let’s have lots of schemes.
Anyway, that’s where we are. I have expressed myself about QASA itself here (bottom of the page but it’s worth reading the whole shebang), and about the BSB Chair’s view here. This is a serious issue – the standard for the current proposed quality assessments are published here at pp81-85. I will post about them separately, but have a read and ask if they really help show that advocates are competent.
And yes, it’s nice to be back and – even though I said I never would – I have twitter.