Life at the Bar

QASA – Lousy Points and Political Silences

ImageI don’t want to be unfair regarding the issue of QASA. That is so particularly as I regard what my regulator is doing with such dismay, and I try to guard against that dismay colouring my response to the merits of the BSB’s stance. Yet, I am truly astonished that instead of discussing the issue, or trying to be transparent, or acknowledging mistakes (all of which are characteristics of efficient organisations) the BSB has decided to threaten, to avoid debate and to pontificate. I cannot speak for the lay members (and in that I include Baroness Deech who, as far as I know, has never practised at the Bar), but I am dismayed that the Barrister members of the BSB are acquiescing in such poor points. I know a fair number of these barristers and I respect them and acknowledge the work they do (unpaid) for the profession. I can only hope that their silence denotes internal debate, properly carried out in private.
However, public discussion is important. These are some extracts from the Joint Advocacy Group’s response to the 4th QASA Consultation. Extracts have been taken because otherwise this post would go on forever. A limited number of extracts have been taken for the same reason. I have tried to ensure that you can accurately see what is being said, and in my view the extracts I have chosen give a fair reflection of both the tone and quality of the response. The comments are mine.

Q6: Do you foresee any practical problems arising from the process of determining the level of the case? If so, please explain how you think the problems could be overcome.

Outside of the formal assessment process, the level of the case will routinely be determined between the instructing party and the advocate. The decision as to the level of the case and the reasons for it should be recorded and will be subject, where necessary, to monitoring by the regulator. Any evidence of abuse will be taken seriously and could result in disciplinary action.

Thus the advocate has to negotiate with the person who is paying them if they want greater payment (via a higher grade of case). The inequality of bargaining power is obvious. Abuse is not defined but cannot mean inequality of bargaining power, because that is inherent in the scheme. What then is abuse in this context? I don’t know and the response doesn’t tell us. Nor are we told:

  • What triggers ‘monitoring’
  • When monitoring is ‘necessary’
  • What would constitute ‘evidence’ of ‘abuse’
  • Why it is necessary to tell us that such evidence ‘will be taken seriously’. I would expect this to be a given.
  • What ‘could’ make such evidence of abuse result in disciplinary action. And what abuse, despite it being taken seriously, could justify no disciplinary action.
  • Who will be disciplined, by whom and on what basis.

I know this is only a response, but the language is so vague that I suspect – basing my suspicions on 26 years of practise which includes endless study of documents of this type – that it is intended to mean nothing. That, in turn, suggests that the purpose of these words is to ensure that dissent and disagreement are ignored.

Q7: Do you agree that the offences/hearings listed in the above table have been allocated to the appropriate level? Are there any offences/hearings which you believe should be added, and if so, what are they and which level do you think they should be allocated to?

The revised Levels Table proposed in Question 7 was welcomed by the majority of respondents who favoured the move away from a prescriptive list of cases and agreed that offences on the revised table had been correctly allocated.

Comment

The majority of responses welcomed revisions to the Levels Table and therefore JAG does not believe that significant amendments are required. However, a number of recommendations were suggested to the Levels Table and these are being considered and some minor technical amendments will be made before the Scheme is finalised.

I have no quarrel with this. I include it to prove that the JAG is adopting its stance because of the fact that so many responses to its consultation agreed with it. Now see below.

Q21 Do you foresee any insurmountable practical problems with the application of the Scheme? If so, how would you suggest that the Scheme be revised?

Many responses suggested that the weight of issues expressed in relation to the previous questions suggested that the Scheme as a whole was not fit for purpose.

But (and ignoring the train wreck of the language used, which makes a laughing stock of the people who drafted it):

Having considered all of the responses received, JAG believes that the fundamental components of the Scheme are appropriate to deliver the objectives of QASA and are consistent with the regulatory objectives of the Legal Services Act 2007. With this in mind, JAG considers that making amendments (as outlined in this paper) to the existing structure and approach is preferable rather than wholesale restructure or the consideration of alternative approaches.

This is bent. The approach expressly adopted for Q7 is quietly disavowed in Q21, without explanation or reasoning. The majority of the responses said the scheme wasn’t fit for purpose. But the JAG chose to ignore them. That can only be because the answer they got when they asked the question was inconvenient. There is no other discernible reason.

Moreover, the JAG is too lazy to think again. It is an irony that hundreds of allegedly overpaid barristers responded – for free – and yet their expensive advice has been ignored. And note the ruling out of alternative approaches. That is not a response to a consultation. That is digging in your heels as if you were 11.

Yet again the response to consultation lacks a single assurance that QASA will raise standards, or any attempt to engage with the issue of how standards can best be raised. The best we get is one sentence which says:

QASA is a joint Scheme designed to assure the quality of all advocates.

Having said that, the JAG signally fails to demonstrate how QASA will manage even to maintain quality. That may not be a surprise if so many of its potential victims users think it is wholly unfit for purpose.

Of course, a camel is a horse designed by a committee and the tortuous language, film-flam and lousy points (not even up to QASA level 2 in the opinion of this author – and I have a 15 year-old who is up to level 2) may simply reflect the need to get something out that is vaguely articulate and hammers home the essential message that the JAG is not for turning. But the BSB has signed up to this.

That is my concern and my complaint. The scheme is not fit for purpose. The consultation sought responses about that, got them and has decided simply to ignore them. The authors of the joint report do not even have the courage to put their own credentials on the line. Who are the people who feel it appropriate to ignore all the voices against the scheme, in favour of their own views? What are their names? Their qualifications? Their experience? How can we know whether this is a serious proposal, worthy of consideration albeit a minority view, or whether it is an ideologically or financially driven response? How can the public know?

Next, why is my regulator not asking these questions, making those points? Hard though it is for me to say this, these points are not visible only because my glistening intellect has discovered them and brought them, blinking reluctantly, into the light. They are obvious points, clear to anyone who takes a few moments to reflect on what they are reading. I simply do not believe that the BSB has not seen the points.

That being so, the decision to ignore them, to pretend they do not exist, to wholly fail to deal with them must be deliberate. That decision – made by individuals who are on a regulatory body, shames those individuals and that body. Anyone and everyone deserves more than this: the bland refusal to deal with the obvious objections.

If QASA and the BVT it brings with it goes through, people are going to lose their livelihoods, their homes and their ability to make a living. That is neither hyperbole or exaggeration. How dare those charged with (and – if lay members – paid for) regulating that profession simply duck the issues and resort to evasion and concealment? How dare they? It may be the case that the Bar has to take its share of the grief going around and accept austerity. This is not the place to argue whether a 15 year pay freeze, followed by 2 savage drops within 2 years is a sufficient share: let’s assume that it isn’t. But, if that is a case the BSB sees fit to make then, for heaven’s sake, let it make it.

The failure to do so compels 2 conclusions. The first is that the case can’t be made: instead what we have are the frankly embarrassing arguments deployed in the response. The second is that the people who are behaving in this way have sold out the people they regulate. I do not confuse the BSB with my representatives on the Bar Council. I serve on the committees of one and have nothing to do with the other. I understand the difference. I am not looking to the BSB for representation. I am looking to it for honesty, transparency and the application of professional standards. And, regrettably, at the moment I am seeing zero out of three.

That being so, it is difficult to resist the conclusion that the BSB has abandoned proper professional regulation for supine submission to the politicians who ultimately decide what will happen. If that is so, then the BSB should abolish itself – it has no influence and costs us money. The recent defence of the Cab Rank Rule, being talked up on Twitter by the BSB, sounds more like a sop to the masses than real action and strikes me, at least, as patronising. But, if it is genuine, then why on earth hasn’t the same approach been adopted with QASA?

As usual, if the BSB wish to respond, I will publish it in full and unedited. I would actually like to hear why I am wrong – it would make me feel better about my future. Simply being told that I am wrong, merely reinforces the gloom.

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3 thoughts on “QASA – Lousy Points and Political Silences

  1. Fantastic piece. Deals eloquently and thoroughly with the points the bar, in overwhelming majority , object to so strongly.

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