At the point when the Government launched its consultation paper the Bar had already focused much ire at QASA. With the consultation paper came the prospect of Price Competitive Tendering and swingeing fee cuts. The focus of the professions has had to shift and shift quickly given the appallingly short period of time that we have to respond to the proposals.
QASA is something that both the professions have to still concentrate upon and act together to defeat in its current form. At the time that there was a “noisy minority” who began to speak out about QASA we were consistently told that there was no link between PCT and QASA. Indeed after the consultation was announced Baroness Deech was quick to point out that QASA was not mentioned in the document and that we should, in effect, move on.
I have had conversations with people involved in the genesis of QASA who assert PCT had nothing to do with the design of the scheme. I am told that it was born out of a need to ensure the quality of advocacy in the Crown Court. Whilst I make no comment about such a necessity (and I could not address this issue as eloquently or with such authority as Moses LJ did during his Ebsworth Lecture) I am prepared to accept that many of the architects of QASA did not have PCT in mind when designing the scheme. That is exactly the problem. QASA has to operate in a legal landscape where PCT is being considered.
Whilst Baroness Deech may not be working towards PCT it is undeniable that QASA will form some part of its introduction. Quality assurance was first raised by Lord Carter in his 2006 review of Legal Aid procurement. He expressly linked a peer reviewed quality assurance regime with the safeguards necessary if there is to be any limit on the individual’s choice of representation. In the part of his review that governed procurement he proposed a quality assurance scheme, thereby linking such a scheme with remuneration. He made it clear that such a scheme had to be tried and tested as a pre-cursor to any form of contraction in the legal services market due to an “auction” process.
An MoJ spokesperson has recently been quoted as saying “Quality assured lawyers will still be available [post PCT]. Quality standards will be assessed as part of the tender process and we will ensure they are maintained by the lawyers who win the contracts.”
This is tacitly accepted by the BSB when they say “if you do not have QASA you will simply have some quality assurance scheme forced upon you by the government in connection with PCT”. I am afraid that this is no reason to accept a flawed scheme simply because one of the alternatives may be much worse. I would much rather work towards having a scheme which is much better. The caution shown by Lord Carter that such a scheme should be up and running well in advance of any fundamental changes being made to procurement shows the presence of such a scheme is a prerequisite for PCT and will have a dramatic impact upon its viability.
If the BSB have designed the scheme without the possibility of PCT in mind then it cannot be fit for purpose. Any quality assurance scheme needs to be running for a considerable period of time to allow refinement before PCT is ever introduced. If QASA was not designed with PCT in mind are the BSB not under a duty to either insist QASA is allowed to be developed and refined for a number of years before any widespread and fundamental change is introduced in to criminal legal aid procurement (as envisaged by Lord Carter) or that they withdraw the implementation of QASA until such time as the future of procurement is clear?
I will give you one example of the overlap. Plea Only Advocates. (I can now hear a legion of solicitor readers groaning). The current consultation places a heavy onus on seeking the early resolution of cases through financial incentives for the defendant to plead guilty. So the BSB are now ushering in a scheme whereby an advocate will go to court to conduct a PCMH when they are only able to represent the defendant competently up to the point when s/he pleads guilty and has a massive personal or corporate financial interest in the defendant doing exactly that. I am not demeaning the ethical standards of every practising barrister or solicitor. I am sure that the vast majority will still advise their client according to best practice. But what of five years from now? What if the POA is fresh out of the box with no wiser, more experienced practitioners there to guide them? What if the POA and their employer are not dependent upon their good reputation for work but only upon fulfilling the contract and maximising income levels? The danger to the public is all too evident. The defendant who pleads guilty when there should be a trial. The defendant who pleads guilty to the wrong offence. The prospect of either of these diminishes justice. Surely a scheme designed to ensure the quality of representation needs to at least have considered such issues before it is introduced?
So I throw this challenge down to the BSB. Do they remain committed to the implementation of a scheme which will be introduced to an unknown landscape? Are they satisfied that Carter was wrong when he said that quality assurance should be established and refined before major changes to the procurement processes are implemented? Are they satisfied that the public are being protected by a scheme which was designed with a different landscape in mind? Is there a need for further consultation prior to implementation so that problems such as I have highlighted above can be fully considered when we know what the future holds?
It seems to me to be perverse to introduce this scheme in the current circumstances. A prudent regulator would, at the very least, delay implementation. Only an unreasonable regulator would blindly ignore the link between QASA and the difficult times ahead for the public created in a post Price Competitive Tendering world. It is not weakness to listen to the noisy majority and think again.