Better the devil you know
In an exclusive blog for this website, Baroness Ruth Deech, chair of the Bar Standards Board, addresses the increasingly strident criticism from criminal law barristers about the impending Quality Assurance Scheme for Advocates (QASA)
Deech: if QASA didn’t exist, the government would have to implement its own quality assurance scheme
There has been a lot of tweeting and blogging about QASA in recent months. The involvement of three separate regulators seeking to address the issues raised in their different branches of the profession has made it a slow, complicated negotiation.
As a result, we have not always been able to issue all the information that people would like to see when they would like to see it. I’m sorry to say that delay over the publication of the response to the final consultation is a case in point.
Understandably, confusion and rumour have filled this space. However, recent tweets and blogs are far from the truth and demonstrate a poor understanding of QASA, so it is important to respond.
The first point to make is that although there has been much negotiation and debate between the three regulators, we have now reached agreement and QASA is moving forward. There will be help and support for all barristers and the judiciary as the scheme is gradually implemented.
Secondly, it is important to separate the economic pressures undoubtedly bearing down on the criminal Bar from QASA. Rightly or wrongly, the government agenda to address its spending and the impact that is having on its legal bill will continue with or without QASA. The Attorney General has made clear that the processes are not linked.
It’s naive to think that stopping QASA will stop ‘one case, one fee’ or best-value tendering. In fact, if QASA didn’t exist, the government would have to implement its own quality assurance scheme to fit within the confines of OCOF and BVT. I am sure that it is preferable to be quality assured by a scheme that is designed to work around the needs of the criminal Bar following four rounds of consultation than one tied to a government austerity measure policy.
Alternatives to QASA are likely not to include the judiciary but evaluation primarily by assessment centres or roving assessors. The cost of such an approach would be substantially greater than the proposals under QASA and would be borne by the Bar.
Even the noisy minority of QASA dissenters might agree that it’s at least better to deal with the devil you know – with their own regulator.
As a regulator, it is not our place to enter into a debate about competitive tendering and case fees other than to contribute to the forthcoming consultation from a public interest perspective. Suffice to say that legal aid funding and associated financial pressures are putting pressure on quality. This sad truth makes a quality assurance scheme even more important.
Increasingly, the judiciary has expressed concern to the regulators that the risks present in criminal advocacy are in fact materialising in the shape of underperformance. There have been a number of high-profile judicial pronouncements on poor-quality advocacy and these have been echoed by judges during a series of visits by members of the Joint Advocacy Group to Crown Courts in England and Wales. As a result of these concerns, the scheme has the full support of the Lord Chief Justice and the Council of Circuit Judges.
QASA is about ensuring advocates are working at the right level because there are some people, as in all professions, who are not as good as they should be. Lawyers are one of the few professions left where a regulator does not impose a formal quality assurance process. Self-assessment is no longer an option.
It has also been suggested that solicitors will be tempted to allocate a case to a lower level to save money, meaning that the advocate would be ‘tricked’ into taking a case above their competence and failing to meet the standards QASA will require. This is a very unlikely scenario. Solicitors have always allocated levels to cases to ensure the right barrister was instructed. QASA is just formalising this practice, making it less likely to be abused. A judge will refuse to assess an advocate if they feel a case has been incorrectly graded.
The old method whereby a judge would have a word with chambers if a barrister had performed badly is neither transparent nor fair.
Further, the system will not be set in stone. There will be a two-year review to ensure it is working as intended, including looking at whether or not cases are being fairly allocated.
Finally, many have argued that QASA will downgrade the status of a QC. It is important for the credibility of the scheme, and assurances to the public, that all barristers undertaking criminal advocacy have been subject to the same independent assessment.
However, following feedback, the scheme does provide for a modified entry route for recently appointed silks to recognise the fact that they have been assessed recently through the QC application process. In addition, the regulators will commence discussions with QC Appointments to see whether there is any scope for a continuing quality assurance role that they could play in the re-accreditation of silks which could be recognised under QASA.
The QASA bands are set deliberately widely to ensure that the full range of cases can be accommodated. It will be clear to the public, the judiciary and instructing solicitors that within a level there will be some variation of experience. In Level 4, silks will sit at the top of the band.
The publication of the handbook in June will help explain more about the detail of the QASA process. From then we will be running road shows and seminars to ensure everyone has a chance to ask questions and access QASA support.
Every barrister knows how important it is to have the detail of a matter and consider the argument from all positions. Please take a moment to consider the detail of this case. We have a posted lengthy QASA Q+As. For those with more questions, please e-mail QASA@barstandardsboard.org.uk.
Tags: bar standards board, QASA, Quality Assurance Scheme for Advocates
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