Life at the Bar · Qualities Required · The Future

A Reply to Dan Bunting


Dan has written a powerful post on why he will vote yes. He is one of the good guys, like Matthew, who is both genuinely troubled and is prepared to think through the consequences of what he is urging us all to do. He has not dodged the questions and he has answered them. He is a powerful example of what Grayling is endangering and why the country would miss us if we go. We must make up our own minds and as profoundly as I respect him and his arguments, I equally profoundly believe he is wrong. I have posted this on his blog as well.

 

Dan,

You say, in answer to my first question, that you are questioning the wisdom of the decision, not the fact that it was the best deal we could have got. I understand that, but that does mean that we are unlikely to do better – even if your argument is correct – without significantly ramping up what we do. That, obviously, is a change of course, given that what Lithman got is most of what the CBA said we wanted.

Your suggested course of action is, in fact, to go back to where we were and ramp it up. More financial pain, with cuts in July. As that goes on, it is inevitable that the action will start to splinter because it will have to. Never mind supporting solicitors – how many of us are really going to fail to pay our mortgage and heave our families into the street? It’s the beginning of April, so this is going to go on for May and June and then get worse. Most of the junior bar to whom I have spoken haven’t got anything like the resources to manage for that long.

You don’t address this, but go on to talk about the MoJ response. The difficulty is that their response – leaving OCOF entirely aside for now – is likely to be to do nothing but impose the cuts and carry on waiting us out. We know that because Lithman has told us. We can’t pick and chose on this: if they are evil and will impose the cuts anyway in 2015 then they will certainly do so when we renege next week.

As they do nothing, we fade away. People will go and do returns. Or they will go bust and be struck off. Or leave. And your strategy will achieve – all on its own – exactly what you say the MoJ wants. Your only hope is that the MoJ buckles before we do. I can’t think of an example where a small group of people, about whom the public cares not very much, have achieved that. That is why the current deal is the limits of the possible.

You postulate OCOF as the worst thing and then say it isn’t. OCOF is the end of the Bar because the only competition will be on price. We will bring nothing to the party. Good advocacy will be a random event. But OCOF will be irrelevant if we do it to ourselves. As each person goes bust or returns to work, our ability to negotiate anything diminishes. We will make ourselves vanish. You say that this is what will happen anyway but that is such a counsel of despair I can barely bring myself to believe you mean it. It says nothing for the solicitors you urge us all to support. It is far from certain. It does not begin to factor in the Reviews that are to come.

Most of all, it argues that we should bring about the certain destruction of the Bar, because it is doomed anyway. What happened to fighting? To persuasiveness? To advocacy? You may be right – if we have stopped believing in the things we exist to do then we may as well pack up and go home. This is truly a Darwin moment. We are being urged to be the profession that commits suicide today, so that we aren’t strangled next year.

You explicitly say that we will never win. If that is your view then I think you ought to leave the decision to those who genuinely believe we can. Because, once you have accepted that nihilist position, it is impossible for you to be sure that you are voting responsibly. You are certain that nothing good can happen and your choices – as outlined above – will actually make certain that your prognostications of doom are correct.

And that, ultimately is where I think the Yes camp are. So convinced they are powerless that they would rather have a massive row they lose, than dare to dream of winning. For some – for you – I think it is genuine despair, and I am touched and sorry. For others – I fear – it is the excitement of leading a ‘glorious’ last charge, and I am dismayed.

Don’t do it – please. In 1918 Hopkins addressed this precise dilemma:

Not, I’ll not, carrion comfort, Despair, not feast on thee;
Not untwist—slack they may be—these last strands of man
In me ór, most weary, cry I can no more. I can;
Can something, hope, wish day come, not choose not to be.

Words to live by.

Simon

Life at the Bar · Qualities Required · The Future

Debate


Matthew Buckland posted a comment on my last post. He’s worth listening to. I reproduce his comment below. I do so, because I began to respond to it and then thought that the comment and the response were probably easier to find and assimilate if they were posted together.

Matthew wrote:

Simon,
I am probably in the group you have described as moronic demented hypocrites. I think that your passion for this deal comes out of your desire to see the most junior members protected and no-one would suggest that is anything other than the type of sentiment that makes us all so proud to call ourselves members of the bar. But I do believe that this is a massive error at a time when the momentum had swung behind us and that this was a last desperate bluff by an embattled politician who really had no cards that could trump ours.
The strongest language I used yesterday was to describe the deal as “tawdry”. I used that word having been assured that we had not been consulted by the CBA. What I was not aware of was the HOC chambers meeting that had apparently ratified this deal, albeit that the information on which they acted may have been a somewhat optimistic view of the deal that had actually been reached.
I don’t know if you have seen the exact terms of that deal. What the Chairman presented today was a very generous interpretation of those terms. Here they are in full
Elements of Proposal – Advocacy Fees
No date has yet been set for the implementation of the reductions in AGFS fees announced on 27 February, but the expectation was to implement in the Summer 2014.
Recognising the impact of the proposed AGFS changes, and the need to allow a period of transition, it is proposed that:
1. We will defer implementation of any AGFS fee changes, in order that we can take into account the recommendations from the Jeffrey and Leveson reviews and the results of the Review of Advocates Graduated Fee Scheme (AGFS) referred to in paragraph 3 below. This would mean that any changes to AGFS fees would not come into force before Summer 2015 alongside reductions in litigation fees. There will accordingly be twelve months to work through the system, working with an open mind.
2. Given there will be no immediate reduction in AGFS rates, we will also defer the implementation of interim payments (and pick up issues related to the instructed advocate principle) and the cracked trial fee for elected either-way cases where the prosecution offer no evidence.
3. We will undertake to review the framework of the AGFS with the professions by Summer 2015 taking into account, in particular:
• Sir Bill Jeffrey’s recommendations following his independent review of criminal advocacy;
• Sir Brian Leveson’s review to identify ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court and to identify ways to streamline and reduce the length of criminal proceedings;
• criminal justice reforms, such as digitisation, which will increase efficiency and affect how advocates work;
• any impacts on legal aid spend from falling crime rates; and
• a comprehensive analysis of income and earnings of criminal advocates, including effects from changes in recent years.
4. The review is not intended to go beyond the savings from AGFS proposed on 27 February. Details of the review will be developed in discussion with the Bar after Sir Bill Jeffrey and Sir Brian Leveson have reported.
5. Deferral of the AGFS reduction protects the junior Bar, but benefits all (since the majority of advocates working on VHCCs also undertake AGFS work). The new VHCC fee rates have been approved by Parliament.
6. As soon as normal working relationships are restored, the Government will work with the professions to consider possible better alternatives to the VHCC scheme, within the same overall budget. This will include examining the GFS plus scheme proposed by the Bar Council.
7. The Officers of the Bar Council and the Criminal Bar Association, and the Circuit Leaders, have stated that, in return for the Government’s proposed approach (outlined above):
• whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection, in principle, to barristers undertaking VHCCs
• there is no reason why barristers who want to work on VHCCs should not do so;
• the ‘no returns’ policy should be withdrawn; and
• normal working practices and relationships through the Criminal Justice System should be restored, with no further days of action.
8. The Bar Council, the CBA and the Circuits will engage with Government on the reviews set out above.
So, the concession is that the cuts to AGFS are deferred for a year. The view that they will not be seen again is spin, not fact( see 4). All that is promised is that there is currently no intent to go beyond the cuts announced in February.
Para 6 means that any VHCC scheme/replacement proceeds on the basis that the bar agrees that it will be within the budget as of now- ie with the 30% cut. Agreed, by us, before a negotiation.
The mechanics of this are murky. Grayling summons the CBA on Tuesday, lays down a take it or leave it deal and says you have 48 hours. Why impose a deadline that is too tight for meaningful discussion?Why do that? To put the opposition under pressure?- and what did we do, despite the strength of our hand? We panicked.
Information was not given to committee members until they attended, clock at 24 hours. No time for reflection or thought as to what we have given away compared to what we have gained.
I make it clear that this deal is very very bad for me personally. I also believe it will be a catastrophe for the junior bar. I have spoken today to several solicitors from diverse firms. All of them envisage keeping more work in house. Most do so more in sorrow than in anger, out of a necessity and knowing it is not best for their clients. I share your concerns that the solicitors have failed to unite and are to an extent the author of their own misfortune.
That may be partially true, but we need them. The relationship with those firms is symbiotic, for better or worse. If the big firms take a bigger share of the work, less will come to the bar. Those firms who are bar friendly may be driven to find another way to meet the advocacy needs of their clients, and not one that puts quality at the forefront.
Can we criticise them for that? Of course, but it is a commercial imperative for them to make a profit and their profits from the LGFS will be wiped out by cuts.
As such it is no answer at all to be better than HCA’s; it isn’t now and it will be even less true in the future. The game will no longer be about quality, just survival.
That is why we needed to stick together, to hold the line for now. What we have been offered when looked at objectively, is nothing more than a stay of execution. Why won’t whoever is in power in 2015 look at the 30% cut achieved to VHCC’s and use that as a benchmark to cut everything else.
It troubles me to be on the opposite side of an argument to you; it makes me question whether I am right. But I am also in good company here, and I think this vote will be very close. Even those chambers who have welcomed this deal have said that they remain opposed to the 30% cut in VHCC’s; which means that they haven’t looked at the deal at all just read an interpretation of it from the CBA.
I believe that each of the above is a perfectly valid objection and I will vote against this deal.
Matthew

 

My response:

Matt,

You and I know each other well and – although you are ridiculously kind about disagreeing with me – respect each other. So I exempt you from being a moronic demented hypocrite and deal with the substantive points you make.

Thank you for setting out the deal proposed, which I assume is something distributed to HoC (of whom I am not one). I agree that whether further cuts actually happen is interpretation. I do, however, agree with Lithman about that, because of exactly the CBA’s case that the savings will already appear from the previous cuts which have not yet worked their way through. That has been the CBA’s consistent position and I accept it. That being so, it seems to me that further cuts will arise only if the CBA is wrong or if the MoJ break their part of this bargain and seek to make further cuts.

I don’t think they will, because this action has convinced them that it is more trouble than it is worth. That was our default position, our primary one being to persuade them that they were wrong in principle – an argument in which, unsurprisingly, they showed less than no interest. But holding our nose when dealing with the MoJ is nothing new – as the late, great Abba Eban said of Israel and the Egyptians, you make peace with your enemies, not your friends.

Your point is that we could have done better. And, coupled with that, that further reflection and thought might have shown a way to do better that was not otherwise apparent.

I accept your point in outline (although the irony of some CBA people – not you – demanding more time, having done their very best to curtail both the time for thought about the questionnaire and its questions, is so rich that it could pay for another round of cuts). But, ultimately, I look at Lavender, McDonald, Lithman and the CLs and I ask myself “do I trust them to do the very best they possibly can and to assess the situation correctly?” And my answer is “yes”.

A great deal of the opposition (again not yours) seems to me to consist of damaged armour propre complaining that the particular genius/saviour in question was not given the role that their own assessment believes was deserved. But I know quite a lot of these people and I can say that their collective wisdom and experience is as good as we are going to get, even though I myself was not consulted – an obvious error for which I am (still) awaiting fulsome apologies ;).

In the end leaders have to lead. As I have said to Russell Howard below, I am still waiting for a proper assessment of why they should have said no and what will happen if the CBA membership refuse to back this deal, other than the resignation of those we voted for last year.

You have suggested we could have done better. As I have said, perhaps we could. But the consequences of rejecting a deal must also take centre-stage. The risk was not that we did better but that the MoJ dug in. What I cannot really understand is why that is now being disregarded. When no one knew about this deal, it was widely assumed that we would have to go on until at least June this year and then refuse the new work at the new rates. That was West’s view when he sat next to me at Grand Court 10 days ago (although he also believed that Grayling would be moved at some stage). Now, the availability of this deal seems to have persuaded people that any deal was possible.

I don’t agree with that for 2 reasons. First, it is clear that the MoJ was not prepared to reverse the VHCC measure which had already gone through Parliament. That has all the hallmarks of a political decision. To change it may have been possible but – as we had always expected – it would have taken months. Secondly, Grayling is content to take his chances on the new rates for VHCCs because he believes people will do them. We are not obliged to do them – point 7 on VHCCs means nothing because it merely restates the position as it existed even when we were refusing to take VHCCs.I hope we continue to refuse them, although I know some people will have difficult choices to make. I hope we will refuse them as a group. I will refuse them. But I don’t believe the evidence shows Grayling would have changed his mind. Thirdly, I accept the view those at the meeting came to, which was that another deal was not possible. They consisted of good people, extremely experienced in highly charged and difficult negotiations. Being disappointed at the result is not a reason to assume they got it wrong.

I am aware that the deal is bad for you and – as I would expect – that isn’t what is informing your argument. If we can reach a profession-wide consensus on not taking VHCCs I would be delighted – after all, it only requires 11% of us (about 1500 people). I don’t believe that the CBA has signed up to the VHCC cut. Assuming that the reference to the “same overall budget” is a reference to the reduced budget, as it seems to be, all that has been said is that we will see if we can do better than the current scheme. If nothing better can be done the work remains un-deemed and thus not subject to the cab rank rule (a stance supported by the Bar Council and the much maligned BSB).

That agreement was reached because it did not alter the VHCC position, but assisted the other 89% of us. Those negotiating accepted that the VHCC position would not change – or would not change for months if at all. I don’t like the decision but that is because it was hard and nasty – not because it was wrong. The argument that it is wrong has not yet been separated from everyone’s dislike of it, as I have already said.

You also suggest that solicitors will now keep work in house as an economic reaction to their own cuts. As I have already said, I accept they may. However, I also link that proposition to the fact that solicitors agreed to work at the new rates. It seems to me that some – at least – contemplated offsetting their loss by using advocacy fees. That is why I say we cannot do the solicitors’ job for them. That is why I have yet to hear those vocal and bitter voices out there in the ether saying that they will not do so if the cuts are withdrawn. Ultimately, solicitors see advocacy fees as easy money.

You also suggest that small firms will not do their own advocacy but will, instead, go under, leaving the big firms with all the work in circumstances where the big firms do not brief the bar. But the answer to that is to compete, because the big firms are not interested in working with us. Even if little firms survived for now, the trend is for them to merge or sell up. The strategy of keeping little firms afloat in the hope that they send us their work is truly the short-term strategy. The long-term strategy is to obtain work for ourselves by taking on the big firms who use HCAs.

That strategy is easier to implement if, as you say, the big firms do not brief out. We are not therefore reliant on them and they cannot persuade us to mute our campaign by withdrawing work they do not give us. The reality is that their advocates are not as good as us. The answer is to go for direct access so that we control work (something that has worked remarkably well in civil work) as much as they do and, perhaps, a public advertising campaign. And a proper QASA, which puts poor members of our own profession in the right bracket.

I am also sympathetic to the argument that this fight came too late and we should have resisted earlier. But I don’t believe we can now roll back earlier cuts – imposed, let it be remembered, by the Labour Government in an act of spite just before it left office. That is part of the reason I take the view that, whatever Grayling’s own ambitions, this is an argument with the civil service. Proper, outside, advice might assist the politicians in charge of the legal system to appreciate the second-rate quality of the advice they are given by those who taxpayers support. At whatever the sum is, we have one of the poorest departments of state in the world.

Best as ever

Simon

Qualities Required · The Future

A Better Idea Than A Strike


I posted this on the CBA website as a comment first. No picture – it is too important. I love this profession and I believe in what we do with an intensity that occasionally surprises even me. A strike will cause our profession irreparable damage. Please, read, think and decide against it.

The difficulty with a forum like this is that everyone cheers on the most radical voice. Alas, in the quiet of your own home/room, with enough bills to decorate the wall with, it isn’t like that.

Let me make my position clear. I don’t believe that Silks or senior practitioners, with a practice to support themselves and some ability to raise capital, should be urging other people to strike. I don’t regard that as leading. What strikers face is the erosion of every penny they have and no ability to raise money. I remember the miners’ strike. I remember how keen everyone was, until the money ran out. Until you couldn’t put food on the table. Being a barrister isn’t going to protect us from that. So, the discussion about striking is not one to have first on this forum – have it quietly with your partner and your kids. If a strike is a good decision, it won’t need loud cheerleading. It won’t need attacks on those who disagree. It won’t need the invoking of grand ideas about the poor and the oppressed who you will represent just as soon as you’ve stopped representing your current clients because the end justifies the means.

And, when you have the discussion with those who you love, do not have it on the basis that Grayling is going to roll over. That is wishful thinking. I would never, ever, advise a client to act on the basis that the opposition is bound to give in. Nor would you. So, don’t do it to your partner and children. As the old saying has it, “someone who acts as their own lawyer has a fool for a client”. Grayling can’t afford to lose if we go on strike. He will simply soak up the disruption. And why shouldn’t he? Delay will not be his concern because we, like fools, will have made it our problem. He will talk about middle class whiners, disrupting the system. He will let the pressure grow. He will invite the opposition to condemn us for exposing ordinary people to danger and anxiety. There will be a parade of genuine victims, all frantic with anxiety that their attacker will not be facing trial for months. There will be a parade of wrongfully accused people unable to get justice. And there will be solicitor advocates from big firms – who make no secret of their position – saying sorrowfully that the Bar has abandoned its responsibilities.

And, within 2 weeks, we can confidently predict that 2 things will happen. First, some really nasty vicious person out on bail will commit a serious offence. And, had the system been running properly, he would have stood his trial. And what will we say? That we’re trying to save the justice system? Secondly, people will start going back to work. They will do so because they can’t stand the uncertainty, they can’t afford it any longer and they see it isn’t working. And then the Bar will be a busted flush, broken beyond repair.

Strikes will not work and will prevent any other strategy from working. What we should be doing is our professional job – and no more. You work the 8 hour day everyone else works and then you stop. Judges – put in the position of ordering you to work for free – will be most reluctant to do so. You get paid – not very much and less than now because even less money will take longer to earn. But enough to keep the wolf from the door in the time it takes to really bring the system to a halt and provide us with a wholly defensible position. Grayling is then exposed as someone lying about our earnings, because the assumption in everything he says is that a) we earn a fortune; b) we do it on easy hours and c) we are only in it for ourselves. Striking reinforces those arguments. Working proper hours does not. It focuses attention on what we do for free. It demonstrates that we make the system run for the benefit of everyone except us. It hammers home to the Government that the much vaunted statistics are not the product of brilliant leadership by Recorders, or superb administration by civil servants, but are ours. Then we can ask for a system that recognises what we actually do. We change the debate from “no you can’t and you must resign” (just say it out loud and see how convincing it sounds) to “this is an essential part of the society we inhabit and it must be remunerated fairly”.

That, in answer to the quest for a better idea than a strike, is a better idea than a strike. It is a better idea because it has far more chance of working. It is a better idea because it does not call on the poor bloody infantry to lay down their lives for their better-off officers. It is a better idea because more of us will be left standing at the end. It is a better idea because it is in accordance with our professional ethics, which I – for one – absolutely and truly believe in. It is a better idea because we can carry it on for longer. Because it will carry the public and the judiciary with us. Because it replaces absolute conflict with an alternative way of doing the same thing. Because it will make the public laugh at Grayling, instead of making him the Margaret Thatcher of the 21st century. Because we can unite around it. Because it will not lead – as those who call for a strike are already doing – to name calling and abuse. This debate should not be inflamed by grandstanding about “patrician” QC’s, Heads of Chambers and leaders of the Bar who don’t agree with what the radicals want. Each of those people serves as a volunteer and to suggest that they don’t care about what happens – or that they are bound to be wrong because they don’t agree with you – is both daft and insulting.

And, if I’m wrong, it’s a better idea because, if it doesn’t work, we can go on strike then.

I regard the argument that we are doing this for future clients as wholly wrong. I act for my current client. Barristers don’t let this client down because it serves the interest of the next client. And, once we are seen to let clients and victims down, why on earth should the public ever trust us again? We say, regularly, that a professional reputation takes a lifetime to earn, and a second to lose. Why are we not applying what we know to ourselves? Abandon today’s client and no one will believe it’s all about tomorrow’s.

And they will be right not to trust us – who said that we were entitled to do this? Who gave us the right to determine that today’s client is less important? Plenty of barristers can survive on less. They may not want to. But, if there is even a chance that the profession thins out by 33% and the rest survive then we will have lied about why we are doing this. We will not have gone on strike to save however many future clients it is that justifies dropping today’s client in the mire. We will have gone on strike because of our own pockets. That’s fine if that is what we say. But it won’t be what we say. We will have committed the two ultimate professional sins: we will not have told the truth and we will have made the job about us, not about the people we represent.

If we take professional ethics seriously – by which I don’t mean simply obeying the rules, but being genuinely motivated by a desire to serve the people we represent – we won’t do this. We will not trade in what we can certainly do today for the uncertain prospect of being able to do more for someone else tomorrow. We will not ask our clients to be sacrifices, on the basis that we know best about what is to come (and who’s being patrician and patronising then, eh?). Striking is doing exactly that.

Calm it down. Try everything else first. Don’t let’s martyr ourselves, our colleagues or our clients. Because that is the obligation we owe. Let’s not be glamorous heroes – let’s be barristers. Because that – as we all agree – is what we are trying to save. If we can’t do it by being barristers, we certainly can’t do it by not being.

Life at the Bar · Qualities Required · The Future

Look At Me I Ain’t Your Enemy


The quote is from the Black Uhuru song, Solidarity (watch above and forgive me for showing my age). But really…

Yesterday I posted about how the BSB Guidelines should be viewed. A section of readers decided that the proper response was to start abusing the BSB – the Vice-Chair of which commented on the post and stood up to be counted.

I am bewildered by that response. A great deal of the reaction seemed to object to the fact that the BSB had issued guidance at all. That’s daft. Not only is it our regulator so that’s its job, but would we really have preferred silence followed by action of which no one was warned? I doubt it. Moreover, what the BSB said was that those who did not attend Court on the 6th January would be in breach of their professional obligations. That is exactly what the CBA has said. Yet a number of people have behaved as if this is a terrible thing for the regulator to have done.

That response diminishes the Bar as a whole. We have professional rules. Is it seriously being suggested that these be set aside for our convenience? If so, then the rules aren’t worth anything and we ought not to call ourselves professionals. Moreover, we would not dream of asserting that position in relation to an alleged criminal we prosecute or defend. We understand professionally that rules are there to be obeyed and that they have a value. I simply do not understand how any barrister worthy of the name could seriously propose that our professional obligations should be shelved so that we could do something that would otherwise be impermissible.

The point about the action on the 6th – which I, reluctantly, support – is that it is a breach of the rules. We are supposed to feel so strongly that we are prepared to breach those rules to make our feelings known and to bring the matter to wider public attention. That entails risk and to complain that the risk has now eventuated because the BSB has told you what you already know – i.e. that you are breaching the rules – is to behave like a spoiled child. If you did not appreciate the risk before then you should have done: however vulnerable members of the Bar may be, we are all adults and we are all obliged to inform ourselves of the consequences of our decisions before we make them.

I suspect that most moderately intelligent people know this. Which makes the sneering and complaints about the BSB even less impressive. I joined a profession that gave a voice to despised causes and nasty people. I did not become a barrister to join a chorus of contempt at supposed easy targets. We should not be making ourselves feel better by criticising a group of people doing their job, whose only “crime” is to disagree with us (if they do). Leave that to the Daily Mail – whose behaviour we say we scorn.

There is more than a whiff of “if you’re not with me then you’re against me” about this. That is a disgusting stance at any time and, in terms of a profession where each person makes their own choice and is then to be respected for it, it is inexcusable. And if this sounds angry then it is because I am. I am desperate to ensure that this great profession is able to continue. Not only is infighting antithetical to that outcome: if the values I am trying to preserve are undermined by a group of people who can’t accept dissent with grace and who apparently feel entitled to have everyone else do exactly as they wish, then what’s the point? Making snarky remarks about what seems to be an easy target and failing to correct impressions that you know to be inaccurate isn’t how members of the Bar behave. So, if it applies to you, don’t behave like that.

If people don’t want to strike then that is fine – those propounding a strike have failed to persuade their audience. We should all be used to that, and anyone with any professional self-respect asks themselves whether it is what they did wrong that meant the outcome was not the one they argued for. They don’t blame the Judge or the Jury unless they need to make excuses. And, even worse, tonight I was asked how particular individuals – not me – are going to behave. As if there were two teams. What an act of genius that is: to behave as if those who may actually agree with you are an enemy because they haven’t stood up on a soapbox and loudly announced that they are pure.

So let’s stop it shall we? I have not named any names – if this applies to you then you need not out yourself. And if you are thinking that this type of behaviour is what the Bar needs – please think again. The game needs to be worth the candle: it isn’t going to be if the profession can’t find a way to accept that not everyone will do what the majority wants and that individuals have a free choice. Nor, might I say, do any of us know what precisely will inform those choices. So it is best to judge kindly, rather than to assume betrayal – unless you think that dissidents ought to be forced to explain themselves, in which case you might find a better niche in one of the world’s nastier dictatorships. 

We owe it to ourselves to restrain ourselves and to behave in a way that makes what we are trying to preserve worthwhile. No member of the Bar and no entity which has members of the Bar at its core should be accused of being the enemy or of betrayal. Please don’t let’s do it.

Life at the Bar · Qualities Required · The Future

The Risk We Run


resistance-is-futileOn 6th January the Criminal Bar is going on strike. Or, more accurately, they aren’t going to turn up for work in the morning. On 6th January I start a civil trial. I will be working on that day because the Court has listed the matter and my client is paying me to be there. I make this declaration because I want to talk about what is going to happen. I should also be spending this evening doing the Opening for that trial and I very much fear that I will pay for this post with a 3am finish some time soon. Still, it’s important.

As you would expect the Bar Standards Board has published guidance about the 6th January. It says that not attending Court is a disciplinary offence. It says,

In no circumstances should you deliberately inflict detriment to your client or disruption to the Court’s processes as a form of leverage to further your own interests.

Let’s get some things clear:

  1. It is unsurprising that the BSB has issued guidance. It is obliged to regulate us. Not to issue guidance would be to fail to do so. We might not like it, but to suggest that it should not have happened is irrational.
  2. It is not the case that the BSB must support us. It is an independent regulator. There is no obligation upon it to view breaches of the Code of Conduct as if they did not matter. It would be a dereliction of duty if it did. The notion that the Code of Conduct can in some way be put to one side or waived if it suits us is wrong. If it means anything, it means that we have a standard to which to keep. The CBA has itself acknowledged that striking is a breach of the Code.
  3. The Bar Council has issued its own guidance. I have heard people saying that the Bar Council is like the Law Society and has lost the confidence of its membership. I hope that the latter proposition is untrue – it certainly is insofar as I am concerned. The former proposition is nonsense: the Law Society sold its members down the river by secretly negotiating with the Government and reached an agreement without consulting them. That was a betrayal of an elected position, which is why Fluck ought to resign. Moreover, the ‘prize’ produced by the negotiation was the abandonment of Price Competitive Tendering – the one proposal to which just about everyone was opposed. Having caught the red herring the Law Society went around saying “look at my whopper”. That is either deliberately deceitful or idiotic, which is why Hudson ought to resign. Not that it’s anything to do with me. But to pretend that the Bar Council is even close to that type of behaviour is bordering on the hysterical.

However, everyone who does not attend Court on the 6th is taking a personal risk. I am one of those who has said they will represent people to whom that risk comes home to roost, either in front of Judges or the Disciplinary Committee and, in either case, for free. I say that to make it clear where I stand. I do not believe this Lord Chancellor can be reasoned with. I do not believe that the Ministry of Justice is trustworthy. I do not believe they will make any concession that is not forced out of them. I do not believe they are interested in being fair. I do not believe they understand the damage they are doing but nor do I believe they are remotely interested in achieving such an understanding. These proposals are rotten to the core and we need to stop them. The only way to stop them is by taking direct action. Nothing else will work.

However, we need to get some other things clear too:
  1. The strike proposal is ill-thought out and has not been the subject of proper consultation. There was no proposal for my chambers to consider when our volunteers to attend the meeting stepped up. The proposal was put at the meeting and not before. It took advantage of the type of atmosphere which is produced when a lot of angry people get together and sound off to a mutually appreciative audience.
  2. That should not have happened. What should have happened is that a list of options were sent to Chambers, so that a serious and sober debate could take place before those attending the meeting knew they were going. The meeting should have debated those options, with the results of Chambers’ deliberations being made clear. The outcome may have been the same, but it may not.
  3. The options should have included a work to rule (my preferred route) including lobbying the judiciary, a mass holiday and doing nothing (I am not pretending to have thought of every option). Doing nothing is important because it would empower those people who really do not want to take any action.
  4. The strike option ought to have been debated in the light of the fact that professional careers may be ended or severely impaired, and not that ‘they can’t discipline all of us’. The protocols should have been published in advance so that those agreeing to strike could see what they were agreeing to.

We are now in the position that so many people are, in fact, going to strike on the 6th that we all need to. Otherwise the thing will be a damp squib and, once that happens, we can never be taken seriously again. Accordingly, I support what is happening and I will support those who are doing it as best I can. That does not stop me feeling that I have been bounced.

This is not a post in which I intend to rehearse the arguments about what sort of direct action we should take. That is for another time. We (not me) are striking. If we don’t the MoJ will be laughing. If I was doing a criminal trial I would strike. Angrily, but I would. What I want to do now is to consider what the BSB has said. I do not agree with all of it. I do not think that it is issued because ‘they’ hate ‘us’, but that doesn’t mean it’s correct. There are some points, which I believe need more thought than they seem to have had.

The BSB says this:

The BSB considers that the risks of an Instructed Barrister failing or refusing to attend a court hearing are, depending on the particular circumstances, likely to include:

  • harm to the interests of the individual client of the Instructed Barrister (which may be aggravated if that client is vulnerable);
  • harm to the interests of other persons involved in or who have a direct interest in the case that is the subject of the hearing (for example, co-defendants, witnesses, victims and jurors); and
  • harm to the administration of justice and the public confidence in the administration of justice.

Depending upon the circumstances that apply in any particular case, the harm caused by an Instructed Barrister deliberately failing to attend a hearing at which he is due to represent a client may be very severe. Adjournment or abandonment of a trial, for example, will usually represent the most serious harm to all three categories identified above.Instructed Barristers who deliberately fail to attend a hearing at which they are due to represent a client may face regulatory action. In deciding whether to take action, the BSB will consider all the circumstances, but will have particular regard to the harm caused by the Instructed Barrister’s actions.

That is fine insofar as it goes but it begs the question of what is meant by harm. Let us take the case of a Judge who agrees not to sit until 2pm. The risk has not eventuated. If the BSB is going to have regard “to the harm caused” then, presumably it will conclude that no harm has been caused to the client. The witnesses and jurors may have to wait. That is the position in every case. Whilst the delay on 6th January may be deliberately caused by the barrister(s),  it is more difficult to say that such delay has caused harm. I am unaware of the BSB or any body responsible the performance of those engaged in the administration of justice ever investigating that issue before. It is difficult to see why that should be done now. If the BSB wishes to “make an example” of people that would be improper, because there is no need to do so – any further action will have to be better planned and better considered.

As for harm to the administration of justice and public confidence, it seems to me that the recent polls suggest that the public sees perfectly clearly that the harm comes from the MoJ. It is the MoJ that has gutted legal aid for people who cannot afford representation. It is the MoJ that has ensured that those with limitations on their own capabilities will have to represent themselves in prison discipline cases. It is the MoJ that has sought to prevent ordinary citizens accessing the Courts to prevent overweening Government action. A protest against that – direct action to prevent that happening – is hardly harming public confidence. What’s more, if the Judge has agreed not to sit, that would seem to suggest that they have considered the point and determined it. Of course, that is not biding on the BSB but they ought to consider carefully why they would wish to differ.

Of course, the BSB Guidance says that the risks “are likely” to include such harm. That seems to me to be prejudging the case – a concern where the BSB is the prosecuting authority. On what basis has that conclusion been reached? What alternatives have been considered? Where and what is the evidence relied upon in coming to that conclusion? Or is this simply a declaration based on nothing more than a ‘gut’ feel? I am deeply uncomfortable that, before any actual case has been examined, a particular result has been said to be likely. If the Judge in one of the cases on the 6th January 2014 behaved in that way, it would be likely to lead to an invitation for recusal. It may be defensible (it’s not for me to say) but it isn’t sensible. The guidance could have perfectly well invited barristers to consider these risks, and it would have been better if it had done so.

If the Judge refuses to allow an adjournment then the Judge is deliberately imperilling the client. On what proper basis could a client thus be prejudiced? Would it be proper to say “you consented to the absence of your representative so you can cross-examine for yourself”? Would that lead to a safe result? Surely, the proper remedy is not to visit the sin of the barrister on the client, but to make a direction to show cause why the barrister should not pay the costs wasted.

If so, then where is the harm? The client has not been harmed. The jurors and witnesses are no more prejudiced than if the Judge does agree – because that is what the Judge has, ultimately, done. Public confidence will, in some ways, have been increased because the fairness of the Judiciary will have been demonstrated (again). Paradoxically, it would be easier under the old Code of Conduct to simply say that striking was discreditable conduct. However, we are now under the new Code, which has moved to ‘outcome based regulation” (just as the research casts doubt on its effectiveness) and so the maintenance of an absolute standard is more difficult.

I believe that what the BSB ought to have said is that not attending Court obviously gives rise to a risk of harm and that barristers would have to demonstrate that such risk had been eliminated (so as not to be guilty of a regulatory breach) or had been mitigated (so as to be arguably not guilty and in any event not deserving of severe punishment). I am afraid that the BSB Board and its staff fail, by and large, to understand the exigencies of criminal practice and its particular stresses and strains. I would like to see both members and staff undertaking 2 week placements in Chambers in order to get a grasp of what criminal practice entails. I have a (nowadays almost unique) practice which entails criminal and civil litigation in equal measure. I do the sort of work the barrister members of the BSB do (not as well as them). That sort of civil work is not like criminal work. The pressures are not the same. The people are not the same. The rules are not the same, and the money sure as hell is not the same. For that reason QASA is a huge error of judgment and this guidance would have benefitted from more knowledge. That is not to say the BSB is evil or badly-intentioned: it is not.

The last paragraph, which I have already quoted, is worth another look. It says,

In no circumstances should you deliberately inflict detriment to your client or disruption to the Court’s processes as a form of leverage to further your own interests.

Why is this relevant? I know of no barrister who is striking to further their own interests. The reason for the strike is to prevent the public losing a pool of talent and expertise, regularly praised by the Judiciary for its commitment to justice, convenience and the elimination of unnecessary time and cost. If these proposals – and yes the cuts – go ahead, that talent will be lost. The nation will be immeasurably worse off. Injustice is a worm – once it gets inside the apple it eats through it. And no sensible person wants to eat the apple with the worm in. Is that how we wish the populace to think of our system? So, the implicit suggestion that this is a strike to “leverage your own interests” is unfair, rude and crass. Had the members of the BSB spent some time with criminal practitioners, it is inconceivable that this sentence would have been written.

I will not see you on the barricades on the 6th. But I will happily run these arguments (and any others that brighter people than I can think of) for you until someone tells me to shut up and sit down. I hope it won’t be necessary. I hope we can agree not to strike again, or at least debate the next one properly. And I cannot believe that I am talking about barristers striking – for which only one party is to blame and that is this Government and its “civil” servants.

Life at the Bar · Qualities Required · The Future

Des Learns to Love Big Chris


i-trust-my-leaders-i-love-big-brother-t-shirt.american-apparel-juniors-organic-tee.natural.w760h760I hope that more sensible counsel prevails over on the other side of the profession than is revealed here. I am bound to say that the feedback and feeling I get from local solicitors is that they are rather clearer about the extent to which our interests are linked than is Mr Hudson.

The reality is that – whether Mr Hudson is piqued by not being invited to a meeting with our beloved Lord Chancellor before the Circuit Leaders (I gather the Law Society are having their own meeting on 8th May but, at the time of writing are not taking any solicitor who practises in criminal work to that meeting) – or whether he believes that the way to deal with the cuts is to try and sacrifice the Bar – this is not a sensible way to approach matters.

It is not sensible because, even if our beloved Lord Chancellor inflicted the entirety of his cuts on the Bar and eliminated us from criminal work altogether, and even if solicitors were then willing to deal with all the advocacy that would be required, the ‘success’ of this tactic would last as long as it took the government and its corporate friends to say “no need for OCOF now, let’s just get on with price competitive tendering at 35% below current rates”. In “1984” Winston sells out Julia rather than face his worse nightmare. It didn’t work then and it won’t work now.

These cuts are the end of a legal profession devoted to client choice, client care and justice. They impose a system devoted to the form of representation, not its substance, as cheaply as possible and, if you can’t afford to pay for something better, it’s your fault for being poor. That is the message that the legal profession needs to put out. Squabbling over who are the best advocates is footling. It risks damaging the trust that the professions have managed to build in the face of the common threat.

There is no more that a barrister can do than say that our opposition to QASA and the cuts is as firm when they apply to solicitors as when they apply to the Bar. I truly hope that Mr Hudson comes swiftly to the same view and that those solicitors who read this assist him to do so. The trouble with loving Big Brother is that the next thing that happens is you get shot in the back of the head…

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.