Life at the Bar · Routes to the Bar · The BVC · The Future

Don’t Send Your Daughter to the Bar Mrs Worthington – Or 16 Irrelevant Things About QASA

The BSB has posted “16 Facts about QASA”. These merit a look, as they demonstrate the way in which your regulator to be is thinking. Others, notably Legal Half Hour have already assessed them but there is room for one more…

1)  Doctors, teachers and policemen are formally quality assessed – advocates should be too.

No one is arguing against this. The issue is how to do it and whether the current proposals will achieve the specified aim. I am astonished that the BSB has not addressed this issue first. To take teachers as an example: you only have to know a teacher to know that an inspection triggers massive stress, high levels of absenteeism and an abandonment of actual education for the alternative task of passing the inspection. It would be difficult to find a consensus view that Ofsted has improved the quality of education. Ditto doctors and policemen.

It isn’t an argument to say that everyone has it so we must have it too. The Bar is dedicated to exposing poor arguments like this.

2) Delaying QASA won’t delay or stop Gov’s competitive tendering plans. It has no link to public funding.

This is not what Baroness Deach previously said. What she said was this: “In fact, if QASA didn’t exist, the government would have to implement its own quality assurance scheme to fit within the confines of OCOF and BVT.

Moreover, without a quality assurance scheme, it is difficult to see how the public could be assured that the people who offer to represent the most people who cannot afford their own representation for the least money will not simply use the first person who will take the minimum wage.

We could test this proposal in this way. Once BVT and OCOF comes in, all people employed in the public sector or who work with quangos, or who work for institutions receiving the bulk of their funding from government or government schemes (such as Universities), and all people involved in the regulation of legal services must use the lowest bidder awarded a contract for all and any legal work they require. Then let’s see who signs up. This proposal has the merit of ensuring that those committed to imposing the scheme are also users of it. There can be no principled objection, although plenty of unprincipled ones – the first of which will be that such people don’t want second rate service. QED.

3)  All advocates barristers, solicitors, legal execs will need accreditation at a level between 1 and 4 to undertake criminal advocacy.

This is true. Interesting that the BSB puts in a separate category of “advocates”. I have no idea who these people are but I think you should be told – there are alternative careers being hinted at here.

4)  To undertake criminal advocacy without registering for QASA would be a breach of the code.

This is also true if the BSB enacts that it should be so. It does not address the reason why it should be so. It is anti-competitive because it postulates only one scheme.

I am also interested in which provision of the Code it would breach. At the moment, I have to comply with para 2, which requires me to have undertaken professional training appropriate to my date of call, and to comply with the CPD regime. Is the BSB saying that it will not issue me with an unconditional practising certificate if I comply with these provisions?

5)  The Scheme has the support of the Lord Chief Justice and other members of the senior judiciary.

The whole point of being a barrister is that the Judiciary do not tell us what we must and must not do. The accused must believe his brief will tell the judge to go to the devil if that is what his case demands. The need to be marked, to move up a level or maintain one’s grade is deeply inimical to the proper relationship between advocate and judge. Lest anyone thinks this is merely the view of a noisy minority, the last 2 sentences are not mine but belong to Moses LJ.

In reality I suspect that the senior judiciary have agreed to back a scheme on the basis that something must be put in place. They may be right or wrong about that but their support is clearly not wholehearted and it is, in any event, irrelevant to the question of whether your regulator to be is correct in imposing it on the profession. This is like saying “my brother is bigger than your brother”, and about as sensible.

6)  In order to undertake trials in the Crown Court, advocates will need to be assessed through judicial evaluation in real trials.

Yes but.

A moment’s thought will show that your regulator to be is not actually committed to judicial assessment for advocacy, but only for trial advocacy. If you believe in judicial assessment then you should commit to it for everything. The BSB accepts that an incompetent plea on behalf of someone who could get 10 years + is not something that QASA should cover. That is unprincipled. So much for “standards”.

7)  Non-trial work levels 2/3 will be available to those who can prove competence against full trial standards at assessment centre.

The 4th consultation response to QASA has just been published. It says, JAG remains committed to providing a route for advocates to be assessed at an assessment centre in order to obtain level 2 accreditation for the reasons set out in the consultation paper and will not be making any change to the Scheme in relation to assessment options at level 2″. Thus, as this point makes clear, Plea Only Advocates can still do level 2 and level 3 work without judicial accreditation. Your regulator to be does not explain why the “full trial standards” to which it refers in this point, are not judicially assessed. There is one simple answer – that the assessment centre will be less demanding.

What is so distressing about this is the BSB’s abandonment of any set standard and thus its abandonment of its own profession. Barristers are to compete with people who do not have to undergo the same level of assessment to the same standard. I don’t altogether blame the SRA for this: if I could wangle it that the competition had to jump through more hoops, it would be hard to place the public interest above my own interests. But the BSB has no such excuse: it has simply supinely succumbed and it won’t even tell us why. So much for transparency.

8)  JAG will accredit a single assessment centre to provide QASA assessments for non-trial advocates and will monitor its performance

So competition is ruled out, and the monitoring of the monopoly holder will be by the people who ruled out the idea of competition. This, in some curious way, is apparently supposed to make you feel better.

9)  Advocates who can’t demonstrate competence against level 2 trial standards will not be able to appear in the Crown Court in any hearing

That’s because all Crown Court hearings are deemed level 2. It says nothing at all. For the BSB to try to sell the scheme on the basis of misdirection is shameful. I say that because, if I made a point like that in Court, I would be ashamed of myself.

10)  All criminal advocates will be required to confirm their competence every five years. This will include silks.

Fascinating. You get silk after a process which involves endless referees and at least 5 Judges being automatically consulted. That isn’t good enough for your regulator. Sound like a turf war.

Moreover, QCs practising commercial law are one of the country’s top attractors of business. The first silk to fail QASA – assuming any sign up – will imperil the entire system. If I were the government I wouldn’t be too happy about this.

11)  Silks appointed in 2010 or later will be able to apply to be passported into the scheme.

Excellent – not all silks are equally competent. I would be really interested to see the BSB’s research on this proposal, which might be commercially damaging to individuals. If there has been any it has totally escaped me. Otherwise, this is a shabby political compromise. There are barristers on the BSB’s main board. Presumably all the silks will now seek re-accreditation. If not it looks like they have thrown their criminal colleagues to the wolves.

I practice in civil and crime. Dear Auntie Ruth, what should I do?

12)  The level of case will be decided by advocate and instructing party. Judges will report abuses and disciplinary action may result.

On level of case, will it really? Actually, the instructing party will say, “this is what we think” and the advocate will agree or lose the work. The disciplinary action will be against who, do we think? The non-regulated commercial operator or the regulated professional who succumbs to economic pressure? And the Regulator thinks this is fair.

Interestingly, although this is a fact about QASA, it is an unhappy one. The BSB acknowledges that the Bar will not be able to dictate what class of work it will accept – a complete change from the current position – and that a barrister will be subject to professional discipline if, nonetheless, they take a case they cannot do. Surely the purpose of regulation should be to ensure that such conflicts do not arise.

13)  There will be a review of QASA after 2 years to assess whether changes are required to improve its impact.

But not to abolish it if it’s a dog’s dinner. Or to compensate people who lose out because of it. Or to assess whether its “impact” should actually be lessened. In other words, the review will not be a review of the scheme itself.

This is what Baroness Deech said 9 days ago: Further, the system will not be set in stone. There will be a two-year review to ensure it is working as intended, including looking at whether or not cases are being fairly allocated.” Is that the same as point 13?

14)  Evidence will be gathered during the operation of the Scheme and will be used to inform the Scheme review.

The latest consultation response does not mention how this is to be done, who will gather evidence, how it will inform the scheme review. The Regulator has neither asked for clarification on these matters, nor considered them important enough to seek a formal commitment to a fair review.

15)  Over 10,000 solicitors have notified the SRA of their intention to register under QASA when it comes into force.

So, presumably, the Bar should act now. Apart from the implicit threat in this point – and the BSB does not appear to have asked itself whether such a threat should properly appear on its website – so what? I don’t know when the 10,000 gave the notification – perhaps before it became clear that the MoJ did not intend solicitors to be the winners of the competition to supply legal services. But the fact that 10,000 Turkeys vote for Christmas isn’t a reason for a single other Turkey to do so.

What stands out from all this – and it is possible to say so now we are so near the end – is that there is not a single positive reason to support QASA in these points. Point 1 is the very best that can be mustered – that everyone else does it. Every other point is an inadequate, poorly reasoned and, in some cases, shamefully misleading reason why we should simply lie down and let QASA happen – presumably whilst thinking of the BSB.

There is, of course, an obvious case to be made for quality assurance and control. It will push standards up: it will ensure that young people are not separated from a huge amount of money on a promise of something that is vanishingly unlikely to happen: it may make chambers commit to pupillage before professional training and thus ensure a scrutiny of the quality of that training which is currently lacking, thus further assisting in raising standards: it will allow the public to have confidence that advocates are properly trained and are not reliant on their relationship with the Judge to carry on practising. All those points – and more – should be publicly promoted. But, of course, they cannot be because QASA confers absolutely none of those advantages. The BSB – your regulator to be – does not even pretend it does. So why is the BSB supporting it?

16) All criminal advocates will be subject to judicial monitoring whenever they appear in court.

No they won’t – or at least not to any new extent. Solicitors wishing to be Plea Only Advocates will not have to be judicially monitored under the scheme. They will be able to become re-accredited at assessment centres (p38).

So there it is. Obviously, my usual offer stands. If anyone from the BSB or QASA would like to deal with this, they will be offered a guest post and I will not edit what they say.

For those of you wishing to do criminal law, may I – with regret – offer you the following advice. Don’t come to the Bar until we know where this is going. I am aware that this advice suits the Government’s purpose – the best way to achieve the politically popular (for now) driving up of conviction rates is to ensure the Bar isn’t around to defend people. I am also aware that it is bad news for the profession, which cannot survive without a fresh intake – and I would point out to my colleagues who do no criminal work that this is a Pastor Niemoller moment.

But this is a blog dedicated to those who want to be barristers and I have always run it on that basis. I would give that same advice to my own children. As things stand, you would be better off as a solicitor. Even then, things will be tough and nasty. But you have more chance of employment and more chance of advocacy, and you may be better placed to join whichever big corporate friend is going to get the contract.

What you won’t have is the pleasures and perils of self-employment, the companionship of other barristers, the enjoyment of being part of a profession dedicated to improving standards  and speaking out for the least articulate members of your own society. But our own regulator is no longer dedicated to those things either and the odds are therefore that they will soon disappear for most of the Bar. By not paying £17,000 to a commercial provider who won’t tell you what your chances of pupillage are, you will simply be beating the rush.

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