Tag Archives: QASA

We’re All Doomed! (Or are we?)

I have been asked my Ian West to host this guest blog. I am always happy to host any relevant piece on Legal Aid and associated issues.

We’re All Doomed! (Or are we?)

The Ministry of Justice (MoJ) announced this week its plans to press ahead with two-tier legal aid contracts. There will be no limit on ‘own client’ contracts, but duty contracts will be limited to 527 (instead of 525) nationwide. There are presently about 1,600 firms with general criminal contracts, so more than two thirds of firms will lose access to new duty clients. In London, particularly, where duty clients comprise the majority of firms’ instructions, the new contracts will mean the end of the line altogether. In the provinces, some firms that do not succeed in winning a duty contract may try to soldier on with own client work, but that will eventually dry up, and they too will be forced to abandon criminal work. There will be advice deserts, and the quality of the advice and representation offered by contract winners will inevitably decline as they seek to make a profit from increasingly tighter margins. There will be more miscarriages of justice that the appeal court has to sort out.

For the Bar, the prospects are no better. The avowed aim of the MoJ is to encourage mergers of firms, to enable back office costs to be spread more thinly across a larger caseload. In practice, what this means is that duty contract winners, confident of that larger caseload, will look to maximise profits by claiming not just the reduced Litigators’ Graduated Fee, but the (so far, at least) uncut Advocates Graduated Fee. They will soon work out their higher court advocacy needs, and will service it by employing cheap, newly qualified, barristers and solicitor advocates, proudly clutching their new, shiny QASA badges. Within a couple of years (if that) the independent criminal Bar will have shrunk to vanishing point, surviving on prosecution work (for as long as the CPS doesn’t follow the defence model) and the odd defence return or difficult client that the in-house advocates don’t fancy.

Of course, the MoJ will not suffer for long having to pay two fees into what is, effectively, a one-stop shop. At the first renewal of the duty contracts, what will be offered are ‘one case, one fee’ (OCOF) contracts. With the end of the ring-fenced advocacy fee, such of the independent Bar that survives even that long will truly be at the mercy of the purse-holding mega-firms, and will surely die.

It is not an appealing prospect for either the majority of solicitors, or for barristers, or, many think, for the public either. But is it inevitable? In my humble opinion, it is not. There are things that both professions, working together can do to delay, or even derail, the juggernaut.

The problem for solicitors is that there a lot of criminal solicitors, and the criminal defence market is highly competitive. There are a few firms who will see the new scheme as an opportunity to substantially increase market share, albeit on lower margins, and to ‘clean up’. Everyone is looking at their neighbour and thinking ‘If I don’t bid for one of these contracts, the other guy will, and then I’ll be dead’. This is the classic ‘divide and rule’ tactic in operation. It doesn’t need to be this way. There are two things the solicitors’ profession, through the LCCSA and CLSA, but also SAHCA, can do.

First, those who fear that they will not get a contract, or would not be able to make it pay if they did, must realise that they are in the overwhelming majority, and recognise their collective strength. There are few firms who could presently service a new duty contract with present staff and premises. They must refuse to apply for a contract. If all firms in that position did that, there would not be enough bidders even to fill the limited slots presently on offer. If that happened, the contract winners would find it even more difficult to service the contract they bid for, and there would be chaos. At the very least, the bidding process would have to be delayed, or implementation put back while the successful bidders attempted to upscale even more quickly than the present, unrealistic, timetable envisages.

The second thing that solicitors can do is to engage in guerrilla warfare with the scab firms, using the tool of their ‘own client’ contracts. This is a battle most easily fought in the provinces, where the ‘own client’ share is greatest, but it can be adapted nationwide. What is the definition of an ‘own client’? It is simply a person who knows which solicitor s/he wants, as opposed to one who does not. Let us educate arrestees to ask for a particular solicitor. The arrestee is asked by the custody sergeant who s/he wants. Why should there not be, on the wall of every custody suite, or the wall of every cell, a list of all of the firms who have an ‘own client’ criminal contract in the area? What about ‘own client’ solicitor firms sharing the cost of employing a person to stand in police stations, introducing new clients on a rota? In short, solicitors need to up their marketing game in order to maximise their ‘own clients’ to the point that they can survive without a duty contract. And they can make life very difficult for the scab firms – withdrawing the co-operation that makes the magistrates’ court run smoothly. It’s time for the gloves to come off.

And the Bar can help. First of all, by refusing instructions from scab firms. The cab rank rule will have to go, but that is a small price to pay in what is a battle for survival. In the first few months, until they had recruited their in-house teams, the new contract holders would need the independent Bar. The Bar need not collaborate in its own demise. Further, the CBA is already looking at lobbying for a change to the Criminal Procedure Rules to require the judge at a preliminary hearing to enquire directly of the defendant whether he has had it explained to him that he may have a barrister in independent practice. The solicitors’ representative bodies need to lobby for a change to their own regulatory codes to require a solicitor to advise a client of the right to instruct a barrister.

But the Bar has an even greater weapon in its armoury to defeat the duty contracts scheme. It is called Quality Assurance (QA). No, not the dismal QASA scheme, which, as the CBA has said, is a sham scheme, intended to fool the public by giving a cloak of respectability to cheap, bad advocates, but a real quality assurance scheme, without plea-only advocates (POAs) and which demands high standards of advocacy, rather than rubber-stamping poor ones. Getting rid of POAs is central to this. Firms with in-house POAs are able to cherry pick the low-hanging fruit – the ‘easy’ guilty pleas. If a robust QA scheme were put in place, the mega-firms would not be able to employ cheap, newly-qualified advocates in order to claim the AGFS fee to make up for the miserly LGFS fee. They would have either to recruit from the independent Bar properly-qualified advocates, at the market rate for the grade of case being undertaken, or they would have to continue to outsource work to the independent Bar.

Accordingly, so far as the Bar is concerned, the first step to saving both the solicitors’ profession, and itself, is to defeat the sham QASA scheme, and to put in its place a scheme that actually ‘does what it says on the tin’. The Bar must refuse to sign up to QASA when the ‘window’ opens, and the CBA and the Bar Council (BC) must start to build a robust QA scheme to replace it. That work has already commenced – I myself chaired a BC group which proposed such a scheme. That need taking off the shelf where it was ‘parked’ and given a new lease of life.

The issue of POAs at one time was a bone of contention between the professions. It caused endless arguments in the Joint Advocacy Group (JAG) which hammered out the QASA scheme. I have argued before that the concept of an advocate who has a financial interest in his client’s plea is anathema to everything the Legal Services Act 2007 is supposed to be about, and I do not propose to repeat the arguments here. The position now, in 2014, however, is that the professions need to ‘bury the hatchet’ over POAs, and realise that removing them from their central position in the QASA scheme is essential in defeating duty contracts, OCOF and the end of life as we know it. Better that 1,600 firms survive without having to cherry pick the guilty pleas, than both professions are decimated so that a few firms may do so.

To conclude, it is not inevitable that Mr Grayling’s vision of the future will come to pass. There are things we can do to delay, deflect and defeat it. We may not succeed, but we MUST try. The alternative is unthinkable.

Ian West
Fountain Chambers

Quality Street

In the domestic visits room at HMP Victorian Holiday Camp. The remand prisoner is talking to his girlfriend. On the previous day he had been before the court for his Plea and Case Management Hearing.

“So right, this guy comes to the cells to see me with all the gear on and is like ‘I’m gonna be your brief.’

So I was like, you know, trying to work him out so I went ‘you gonna get me off?’

But err he looks at me and went ‘well we’ll have to see’

Now you knows me babes. Always thinking. So I ask him about what is going to happen. You know, how things’ll go. Talks about stuff for a bit. Always mentioning me pleading guilty. And I am like ‘hang on, does this guy know what he’s doing?’ You know, like to myself.

So I decide to ask him. ‘Look I don’t know you’ I goes ‘how do I know you just aren’t chatting shit?’

He starts telling me about someat that was like Quaver or someat. Something about these dudes being graded. But he tells me, dead straight like, that he is a ‘Plea Only Advocate’ and that we are there for plea and so this is right up his street and has been like approved to do exactly like this sort of thing.

We carry on talking and then it hits me that something he said sounded a bit wrong. I goes ‘what does Plea Only mean?’. ‘I only do pleas, Not Guilty or Guilty, and other stuff,’ he goes ‘but not trials’

I am doing my nut now. ‘I am going to want a trial’ I tells him. And then he starts going on about being here to advise me about whether to have a trial or not.

‘So yous is like a driving instructor who can’t actually drive?’ I went. Proper shut him up it did.

Then he starts telling me how he has done trials in the mags. I stops him. ‘I have had trials in the mags,’ I goes, ‘but don’t go giving me you your hat and cape and ask me to go and do the trial.’

‘Its alright’ he tells me, ‘I am applying to go up to being graded to do trials’

Then he goes ‘in fact your Judge today is one of the Judges who is going to help decide if I get the nod.’

Then I’m thinking, ‘hang on, that’s not good’ so I says to him ‘what if you do something to piss her off, what if you proper fall out with the Judge?’

And he just looked at me. For like, forever. And then just said ‘I won’t fall out with her’.

‘But what if she is pure wrong? What if she is just giving me a kicking? You are going to be bricking it that she’ll give you a bad mark.’

More looking at me. And he just goes, in like a dead small voice ‘No I won’t.’

‘What’s the point?’ I asks him, ‘what’s the point of this Quaver thing?’

‘To make sure you get quality representation.’

‘And if I have a trial?’

‘Well,’ he goes, ‘ you will have a different quality advocate’

So I says ‘and if I get this right, the people who decided who the good people are is the Judges? Don’t get me wrong bro’, but me and Judges don’t tend to agree about much. It would only be worse if the police got to choose.’

And he like just shrugged his shoulders and said that we are where we are.

‘Does the Judge also get to decide who prosecutes the case too?’ I asked.

‘Nope,’ he says ‘Judges wouldn’t get involved in that’ and then he banged on about something about being impartial and someat about an arena.

So anyways we talked some more and I decided to plead guilty. But only a bit guilty. Not to everything the police says I done. So we have been put off for what he called a trial of issue. Which apparently isn’t a trial. So he can do it. I think. And we are stuck with the Judge he wants the good marks from.

So my bleedin’ case is turning in to the X-Factor. I get a one way journey to the cells whilst my brief has one eye on the Judges’ buzzer.

Dun’t feel much like quality.

So, what’s up at home?”

Dear Damian

Dear Damian,

August is traditionally seen as the silly season in the news cycle so it was a perfect time for you to launch your policy concerning magistrates and making the criminal justice system more efficient. By that I mean such a vital policy should not be lost under the morass of other policy announcements, rather than it fitting nicely alongside stories concerning Katie Price or that nice chap with the hair in One Direction.

So my friend, you have identified one of essential problems at the heart of the criminal justice. It is important that magistrates “are routinely dealing with serious and complex cases, within their powers, rather than committing them to the Crown Court for sentencing” and that you find a way of “unclogging magistrates’ courts, for example, by dealing with the 500,000 or so simple road traffic offences out of the traditional process, freeing-up time for magistrates in courtrooms to deal with more serious offences”. Serious and complex cases are exactly what the magistrates is for, not for dealing with cases where someone is prosecuted by the state for driving matters – I mean that is virtually just an exercise in revenue raising by administrative act so should not have that whole “burden and standard of proof” thing anyway. You speak of these hearings being dealt with by a single magistrate in an office. Too right. No need for decisions that can lead to fines, points on driving licences, economic impacts on the individual’s ability to get jobs and insurance and decisions that may ultimately lead to a driving ban to be taken under public scrutiny in open court at the heart of the community. That’s not what the lay bench are for at all.

This is why your policy announcement rises above the normal silly season fare. You are restructuring the whole criminal justice system as we know it. You envisage a magistrates’ court that “routinely deals with serious and complex cases”. The Consolidated Criminal Procedure Rules currently advise magistrates “where cases involve complex questions of fact or difficult questions of laws….. the court should consider committal for trial”. So your policy signifies changes to be made that are far reaching and fundamental. No wonder you would want them to knock Simon Cowell’s love life off the front page. This is not something to try to sneak in under the radar.

In your press release announcing your brave new world you draw the attention of the press to the comparative costs of dealing with a case in the magistrates and the Crown Court. Can I suggest a simple way forward? Get some of those vans. You know, the “immigrant go home” vans? They have proved a bit controversial so get them repainted with the slogan “your worship, accept jurisdiction” and drive them in the vicinity of all magistrate courts. Magistrates have to realise they are volunteers, unlike those expensive Circuit Judge types. They are the very definition of the Big Society. And that means not committing people for sentence is cheap. Bloody cheap. I know that the Consolidated Criminal Procedure Rules state “the court should never make its decision [whether to commit] on the grounds of convenience or expedition” but it doesn’t hurt if we hammer it home to the bench that it is cheaper. The CCPR doesn’t say they can’t base the decision on costs. They probably should not say in open court but no harm giving them a nudge in the right direction is it?

One of the things that you point out is that in 4 out of 10 cases that are committed to the Crown Court for sentence the defendant receives a sentence that is less than the maximum available to the magistrates who committed him/her for sentence. So only 6 in every 10 get more than 6 months in custody when they have been committed save for pursuant to section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. This is what I like to call the 666 factor (it’s an omen, Damian, an omen).

So we have the situation where a magistrate will often take the decision that they would have passed a higher sentence than is ultimately imposed by the troublesome full time, legally qualified judiciary. Not just an isolated incident but in just under half of all the cases committed. I even understand that, not infrequently, the Crown Court judge will impose a community order in cases where the Magistrates thought their powers insufficient. There are only two answers. One is to up the maximum sentence available to the magistrates. I see in your speech you dangle that tantalisingly before them. But what is much better is just to get them to rein it in a little bit. Have them think “well I would hammer them, but if I just knock a few weeks off I can squeeze it under our maximum and keep him away from that namby-pamby bleeding heart liberal soft arsed Judge and save loads of money in the process”. So we save costs and probably get a nice jump in the prison numbers. Lots of lovely short term prisoners who have little access to rehabilitative work in custody just banged up for hours on end playing Playstation. Get them in custody and get them out again to get them back in again. It is devilishly good.

Admittedly most of those defendants will probably elect to use their automatic right to appeal that sentence to the Crown Court. So the cost saving may be subsumed in to another part of the budget. But I am sure you have a plan for that. Like take away the automatic right to appeal (the devil is in the detail, Damian). It may not be justice but (to quote Franklin Sinclair) it’s not your job to care about justice. Well technically it is, but let’s not quibble over job titles.

Keep up the good work. Perhaps with all the money you are looking to save in streamlining the system you could put some money back in to fees?….. Only joking!!

Yours admiringly,

The Gardener

PS my favourite Kylie song was always “Better the Devil You Know”.

PPS it may interest you to know that if you Google “Damian Green” one of Google’s suggested search terms is “Damian Green Fiddle”. Was a little worried it was going to be one of those tricky expenses misunderstandings like your boss Chris “Split the Bill” Grayling but turns out there is a violinist called Damian Green. Funny.

The Inconvenient Truth

Those who know can talk, those with an agenda will not listen. Another conversation from the imagination….

Backbencher Thank you for agreeing to see me Lord Chancellor

Lord Chancellor Well we all have to humour the swivel-eyed loons.

BB Are you talking about me?

LC Of course not, I was simply saying I understand that you are here representing the view of your constituents and I am here to listen.

BB Right, well, I have had letters from some of my constituents about Legal Aid.

LC Brilliant. My officials told me that they existed but I thought they were kidding. At last I can shut some of those lawyers up and point to the letters you have showing the public’s concerns about the credibility of the Legal Aid scheme. I was beginning worry these letters might be my “weapons of mass destruction” so thank goodness you have some. This is turning out to be a jolly good meeting.

BB Sorry Lord Chancellor, these letters support Legal Aid and are rather critical of your reforms.

LC Oh. Did you mention that to Maureen when you made this appointment?

BB I certainly did.

LC I see. [reaches for pen and paper] That’s one more wage saving I can make straight away….

BB The letters I have received raise a lot of concerns about the cuts.

LC I have to make cuts. I have already agreed to make cuts. I promised Gideon.

BB I don’t wish to be pedantic but didn’t you take an oath that included the promise to discharge your duty to ensure the provision of resources for the efficient and effective support of the courts for which you are responsible?

LC I remember something along those lines.

BB And doesn’t that set you apart from most of your ministerial colleagues?

LC Well I suppose if you are someone who applies the technicalities of oath taking and don’t just see it as a quaint tradition there for the tourists then yes, technically speaking it does make me a bit different from the other ministers but I don’t like to make it too obvious.

BB If we do think it means something then shouldn’t it mean your job is not to agree to any cuts? Isn’t that your duty?

LC Look, you’re not Michael Turner are you?

BB No!

LC Right. Are you sure?

BB Of course I am sure.

LC Its just that I have never met him so I thought I should check. I imagine these are the kind of pesky questions he asks.

BB It is one of the things my constituents raised, as Lord Chancellor you should protect the front line services of representation and find savings from elsewhere only if necessary. But you should be fighting to protect the budget, not agreeing to reducing it.

LC The Legal Aid budget is over £1 billion. I need to reduce it.

BB No it isn’t. The spend was over £1 billion. The future projected spend is well under that figure. You have already reduced the payments we make to practitioners so you don’t have to make further savings.

LC Yes I do. I promised.

BB You also promised resources in your oath….

LC Here we go again…. Look I need to make savings and the Legal Aid spend is huge and so that has to give. Every penny I spend is critical to complying with that oath thingy you keep banging on about.

BB Really? £2 million on leadership training for the civil servants?

LC Its vital that someone shows some leadership.

BB £3.6 million on car hire?

LC People in the department have to get from A to B doing all these blinking’ roadshows.

BB What about the £720,000 your department spent on actors?

LC They play an essential role in selecting a suitably qualified and diverse judiciary.

BB More important than funding the lawyers appropriately who go on to be the Judges in the future?

LC Paying them less won’t diminish quality.

BB How about PCT? Won’t that diminish quality?

LC Nope.

BB Won’t removing client choice and market competition reduce quality?

LC Nope. There may be a different quality but it will still be there.

BB Is there a risk that the different quality will be lower than before?

LC I am committed to defendants having a fair trial. The CPS have been under resourced for years. I am just levelling the playing field.

BB Speaking of paying lawyers I note that the MOJ paid over £6million for “estate legal services”, £200 grand for legal support to MOJ procurement and I dread to think what you have paid the lawyers assisting with plans to privatise the courts.

LC Of course we did. These chaps don’t come cheap. You’re a Tory. Market forces and all that. You have to pay the going rate. If you want quality advice you have to be prepared to pay.

BB But that doesn’t apply to the provision of criminal representation?

LC I am a connoisseur of legal services you see. I know what I am looking at. The plebs, I mean, the public are generally speaking just run of the mill amateur palates when it comes to legal services. I like caviar, they like fish and chips. So it’s best if I choose who represents them and how good they are at it. And if they are acceptably adequate then that’ll do me. For them of course. For me and the Home Secretary it is wall to wall QCs all the way.

BB Isn’t it quite important that the individual gets to choose though?

LC I have a strong record on individual choice. The B&B owners of this land know how much I believe in individual choice. But I just prefer it when their choice matches my choice. And at the moment these people keep choosing specialist lawyers and I would prefer them to choose one of my contracted lawyers. But people cannot have free choice when the state picks up the tab.

BB What about the NHS. Haven’t we introduced personal choice there to improve standards.

LC Okay. People cannot have free choice when the public pays, unless they are ill.

BB What about mentally disordered offenders?

LC Right, people cannot have free choice when the public pays, unless they are ill, EXCEPT where them being ill coincides with them being a criminal.

BB What if them being ill means they should not be labelled a criminal? What if being ill means they are innocent? Should they not be able to choose a specialist solicitor with experience of them personally or mentally disordered offenders generally?

LC Look at that giant hummingbird over your shoulder. Look! Look now!

BB There is nothing there is there Lord chancellor? Okay. Let’s for a moment say we are not going to allow the market to dictate quality, how else do propose to maintain quality?

LC Well clearly there will have to be rigorously assessed standards and processes of quality assurance to make sure the lawyers are all acceptable to me.

BB And how long has that quality assessment scheme been up and running?

LC It isn’t.

BB Because one of my constituents directed me to Lord Carter’s review of legal services procurement from 2007 and in his report he considered it vital that if client choice was removed there had to be a rigorous quality assurance scheme in place that would take at least two and a half years to establish and develop before choice was removed from the market. So how long until you put your plans in place?

LC Four months. But this focus on quality is just a smokescreen by the fat cat lawyers and their monstrous earnings.

BB My constituents were quite, well I think I can safely say, were quite irate about this.

LC I am not surprised they are irate! I have proof as well. Statistics. Evidence of payments. It is fair to say that no professional should be paid more than the Prime Minister out of public funds.

BB They are not irate about what barristers earn, they are irate about what you say they earn. The last figures I have available to me showed that seven civil servants in your department had a salary bigger than the Prime Minister.

LC Well you have to reward some people commensurate to their skills and the responsibility of their work.

BB Isn’t that what is going on when a handful of lawyers get large single payments that will relate to the most serious and complicated cases?

LC But it is why the public lack confidence in the credibility of the Legal Aid regime because they see these figures.

BB Because you tell them these figures….

LC It is simply freedom of information and statistics don’t lie.

BB But ministers some times do in their use of them.

LC I have no idea what you mean.

BB Well it could be said that some minsters have form for it. A propensity to use statistics in a misleading way.

LC Propensity…..that sounds like a lawyer’s word. You’re not Ian West are you? He’s another one of the awkward squad. Are you?

BB No! If the information you release is undermining the credibility of the system why don’t we tell them the reality rather than base a reform on this misconception. Lawyers often say difficult cases make bad law.

LC The public will never think that lawyers are anything but fat cats [whispers] … thankfully …

BB We could tell them. You could tell the press how impressed you are by this account of the junior bar in the blog 50 Shades of Affray [hands minister the document]. Read that and you’ll see she only earns £20,000 per year before expenses after three years in the job.

LC £20 grand before expenses? I bet she gets her decorators paid for on top of that. And claims loads against her expenses for her daily travel, accommodation and meals. We all know how much you can top up your income with some imaginative claims, not that I am condoning that sort of thing you understand. But £20,000 before taking into account her expense claims would be most misleading.

BB You’re right. It would. But it is £20,000 before she takes her expenses OFF that figure. An economic adviser with postgraduate qualification in your department starts on £31,000 per annum. I would imagine their economic advice to that barrister would be “get another job”.

LC Well it is exactly that member of the junior bar that I have made it clear I want to help.

BB By cutting their fees and squeezing them out of the Crown Court by cutting solicitors thereby forcing them to do their own advocacy?

LC Yes. And if they don’t like that help I have made it quite clear I will introduce PCT in to the Crown Court. That’ll learn ’em.

BB So PCT is a weapon rather than a reform?

LC PCT is my grand plan. My flagship policy. The Grayling’s not for turning.

BB But what’s your Plan B?

LC I quite liked the Defamation of Strickland Banks but the rest of his stuff leaves me a bit cold……

BB No Lord Chancellor. Not a question about music What is your alternative to PCT?

LC I don’t need one.

BB But what if there are no bids?

LC There will be.

BB Indulge me for a moment. Let’s say that too few solicitors bid to cover the work. What will you do then?

LC They will bid. And if they don’t we’ll call the Army in. That’s what we always do. Firemen on strike? Call in the Green Goddesses. Security a bit lapse at the Olympics? Call in the Army.

BB That doesn’t really work does it. And what happens if you put 1200 firms out of business and then PCT turns out to be the disaster many predict. What then?

LC What do you suggest? Pilot schemes?

BB Well it would seem sensible. At least have some idea you are right before you get it very, very wrong.

LC I promised to make the savings now, or rather I need to make immediate savings.

BB But you already have. That’s what my concerned constituents are saying.

LC No. I need to save something from the £1.2billion budget.

BB As I said before, it is less than that now.

LC No. The budget is £1.3 billion.

BB You keep changing that figure.

LC No I don’t. The £1.4 billion budget is spiralling out of control as we speak.

BB You are just deliberately inflating the figures.

LC I have to rein in the projected £1.5 billion we are going to spend on criminal Legal Aid.

BB Stop this. It’s ridiculous.

LC Yes it is ridiculous that we spend £1.6 billion on mostly foreign criminals who don’t have a defence. I agree it needs stopping.

BB I am beginning to think you might say anything to justify these reforms.

LC Not at all. The public need to know that I intend to curb this system which swallows £1.7 billion of public funds….

BB Right, I’m leaving this is pointless.

LC Jolly nice to see you. Thanks and all that. Tell your constituents that at £1.8 billion we spend more on criminal legal aid than any other country….

BB I’m off. You are not listening.

LC Oh I am old boy. I listen. Send Maureen in on your way out. I have a saving to make. And give my best to the SELs…..

Make the Lord Chancellor listen to the facts and evidence being debated in Parliament. Signing the petition here is our only chance for that to happen.

Why saying #NoToQASA still matters

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.