Life at the Bar · The Future

Opportunity Knocks

ImageThe late Abba Eban once remarked that the Palestinians never miss an opportunity to miss an opportunity. Whether that is true remains debatable. Sadly, it seems to be true of the BSB.

The Lord Chancellor, possibly a little more politically savvy than the regulator, has made it clear to the Circuit Leaders that he doesn’t give a monkeys about QASA. Specifically:

QASA – not involved in setting it up and to him it is an irrelevance – matter for professions to decide upon.

The reality is that without quality assessment there cannot be BVT. The public will simply not trust the spotty youth from GS4 (Co-Op has declared itself out of the running) without quality assessment, given its suspicion that, as the spotty youth is being paid peanuts, they will be getting a monkey. Grayling is not saying there will be no Quality Assessment – merely that he isn’t interested in QASA. In truth he needs QASA or something like it: is it perhaps that he sees that QASA is unlikely to happen because the professions (that’s now both of them) have no confidence in it.

We know the solicitors don’t want QASA, because at the meeting of the steering group yesterday, they said so. We know the barristers don’t want QASA because you would have to live on Mars not to know it.

Why is QASA the most unwanted thing since the baby in the Convent? Some answers:

  • It is, truly, rubbish. It does not measure quality and it fails to do so in 2 distinct ways. First, it elevates the type of work above the actual skills upon which advocates should be judged. Advocacy should be a skill progressively acquired. The way to do a murder really well is the same way to do an affray really well. It is just that experience and acquired skill grows with the advocate. Not everyone gets to the top. But the proposition that different qualities are required is nonsense. Secondly, once you take the view that you can have plea only advocates you are not measuring quality. Plea only advocates will be assessed to level 1. They will be able to do pleas to level 4. There is not even a pretence at measuring the quality required. It is a fudge – possibly politically inspired. 
  • But now the solicitors do not want QASA either. Why not? Because it paves the way to competitive tendering, the end of client choice and the end of competitive services. That is what they told their own regulator – the SRA. It comes to this: the possibility of plea only advocacy was attractive. But set against the certainty of annihilation of the solicitors’ profession it is not attractive enough.
  • The Judges do not want QASA. The official responses have been very cautious. Judges exist to serve and do not want to be seen – nor would it be right that they were seen – as the leaders of a movement to prevent the professional regulators from regulating as they see fit. But they are professionals and they are no more convinced about QSA’s merits than any single other professional. They know QASA is rubbish, because they are well placed to make their own assessment of it. They are not keen on being made to be official snitches, feeling – no doubt with justification – that the type of assistance that might be useful to help someone up their game is not going to come from failing a judicial assessment, conducted during a tricky trial with a client who thinks the Judge is against him. They also don’t want to fill in 78 tick boxes when they should be thinking about the case. And who can blame them?
  • It is now clear that even the politicians and the civil servants – whether they truly want QASA or not – have decided that supporting it is bad for them, and perhaps bad for the regulators who would hardly be helped by the ardent support of a Lord Chancellor who no one believes has a capable grasp of the system he is supposed to manage and defend.

So who does want QASA? The Regulators.

Why? It cannot be because they believe in it. QASA has now been hotly debated for 6 weeks.  I have faithfully reported every argument in favour of it – usually, admittedly, to then be rude about it (it is just so tempting) – but faithfully nonetheless. What has stood out a mile is that no-one defends QASA. What they say is what Hilaire Belloc tells the children after Jim is eaten by the lion:

and always keep a hold of nurse
for fear of finding something worse.

The trouble is, of course, that there is nothing worse than QASA. Not because a worse scheme could not – with some real effort and excluding any lawyer at all from the panel and allowing all the Lord Chancellor’s whims – be devised, but because the effect of QASA means that no scheme, from whoever and consisting of whatever could have more disastrous results.

That is why the profession is astonishingly united and why the solicitors are standing with us shoulder to shoulder – as we are with them. This is not about squabbling over the biggest slice of the pie. This is about starving to death. And, sadly, the BSB simply does not comprehend the point.

To prove that proposition, look at what Baroness Deech said yesterday:

  • Most barristers will “sail” through QASA. Yes, we will. Because it doesn’t measure anything and because most of us are good enough to pass the low standard that can be discerned. What is odd is that this is supposed to be a recommendation. How can it be? It says that QASA is a lowest common denominator model, designed to be passed. Anyone seriously interested in testing quality is, therefore, bound to despise it.
  • The public expect some assessment of quality. They do. They are happy with the fact that barristers compete in a massive market and survive. They are happy with the silk system. They are happy with CPS grading. They are happy with 10 applicants for every pupillage. They are happy with the fact that solicitors depend on barristers to do a good job and don’t brief barristers who upset clients. There is no – repeat no – public call for QASA. I am not the person saying this. The person saying this is Dr Malcolm Cohen. Dr Cohen is one of the BSB’s lay majority. He has headed a multinational company. He is a qualified accountant and a lay magistrate. This is what he said:

he could not support QASA “on a matter of principle” because he did not consider there to be sufficient evidence to support the need for it in the Crown Court and above

  • It is in the public interest to identify poorly performing advocates. I agree. But not only does this beg the question of how incompetent you have to be to be picked up by QASA if most people will “sail” through it. Not only does it suppose that QASA will find these people. It also supposes that QASA is the only way. That is absolute nonsense. There are other and better ways – a properly designed scheme being the most obvious.
  • That QASA will help vulnerable people to exercise a meaningful choice of advocate by ensuring they are “at least competent”. Can this be serious? Most people will sail through. By definition, therefore, most people are already at least competent. What added protection does QASA provide?

I have been genuinely puzzled by why the obvious is not apparent to the BSB (or at least to some of it – it is clear that the main board is not entirely trusting of Baroness Deech’s platitudes). Some people have pointed out the financial gain – the BSB’s finances for next year do not balance unless they pick up QASA fees. But I do not believe that is it.

I believe the BSB is caught because it has invested too heavily and too personally in QASA. Too many people, with egos that are too large for comfort, have too much invested in the scheme to actually perform their obligation to regulate in the public interest. QASA is not in the public interest. If the most you can say is that it is better than what might replace it, it is not in the public interest. If the best example you can offer is the frankly feeble attempt to suggest that vulnerable people will be protected by a scheme that most of us will sail through then your scheme is not in the public interest.

And, when you add to that the fact that QASA will murder my profession and the solicitors’ profession, destroy access to justice, reduce diversity, cost a fortune (no one keeps their costs down once they are a monopoly provider unless compelled, and – as numerous private finance initiatives have demonstrated – the government is incompetent when it tries to compel this), deprive clients of choice and ensure that the quality of advocates and solicitors and Judges drops like a stone, QASA is not in the public interest.

That argument is made out. It is not capable of challenge and not a single person is even trying to challenge it. The only reason for defending QASA is the 3 year-old reason – “it’s mine. Mine!” As a longtime supporter of the BSB and a long time worker for it I deprecate that approach. It is time to be grown up and actually re-examine QASA.

I believe in quality assessment. I believe that it is a necessary part of the profession moving forward into modernity. It is comfortable to be as we have always been but, in an era of increasing specialisation, increasing expectation and increasing complexity, the way the Bar has been is not the way it can be. We must maintain public confidence or we are nothing. If we are good we can always be better. If we are worried that standards are slipping we need to act now, not to hope that no one discovers the cracks.

The fact that the public is not crying out for QASA is a reason to abandon a scheme which offers nothing. But it is not a reason to do nothing. Rather, it is an opportunity to create a space where something can be done which is truly helpful to the profession. Whilst the professions together tell the Lord Chancellor what he can do with his plans to stuff British justice and whilst the Bar says no to QASA, we have a chance not simply to win the war but to plan the peace.

And – surprising though it is to find myself saying this – we need the BSB. Not in its current inflexible, self-concerned, egotistical mode but as a professional regulator where members of the Bar and lay members engage together. Because – and whilst it is not remotely true of QASA, it is true at the moment of the BSB – what would replace it would be worse. If the good people leave the BSB, or if it is replaced, the replacements will be those who are content to war with the profession, whether they are from within it or outside it.

So this is a chance.

But the message is clear. The BSB is pushing QASA when it should not be doing so. The need to protect the public against the few who will not sail through is not a reason for QASA, because QASA is wholly unfit for purpose. 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). Faced with that choice, there is no choice.

That the BSB intends to ram its will home in the face of opposition and all the arguments, by threatening the very Bar it says it wishes to defend with professional disqualification is more than unfortunate. I look at the people on the conduct committee, some of whom I know well and ask, will they be prepared to prefer the charges? I look at the people on the disciplinary committees on which I have sat and before which I appear: I know them to be fair minded and concerned for the profession and I ask, will they put barristers out of work for the ‘offence’ of not signing up to a scheme? I look at those who prosecute for the BSB – all of whom work for free because the reputation of the profession depends on being wiling to deal with our own bad apples – and ask whether they will be willing to prosecute people whose only ‘offence’ is to want to allow their own ability to speak for them until a decent scheme is formulated?

I don’t think they will. I cannot conceive that the BSB will force the issue. But, if I am wrong then God help us all. So, this is a good time to start talking about a better system than QASA and for the Bar to get behind the effort to design one. As Bernard Woolley says when Hacker asks him what he will do when the chips are down, “Minister, it’s my job to see the chips stay up”. Let’s try to see if we can do that.

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2 thoughts on “Opportunity Knocks

  1. 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.

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