Life at the Bar · Qualities Required · The Future

Is This The Best That Can Be Said?

resistance-is-futileI 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.


7 thoughts on “Is This The Best That Can Be Said?

  1. What a fantastic rebuttal of what can only be described as self interested bad self important nonsense. I was a bar school with the author. He hasn’t changed a bit. Twat.

  2. “as venial and as incompetent”

    Suspect you meant “venal”: venal = bribable, venial = forgivable (of a sin, as opposed to a mortal one).

Leave a Reply

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

You are commenting using your 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