8 October 2012

Revealed: criminal Bar threatens JR over “unlawful and unworkable” advocacy scheme

The Quality Assurance Scheme for Advocates (QASA) is unlawful, unnecessary and unworkable and will be judicially reviewed if it goes ahead, criminal law barristers will warn this week.

In a significant hardening of its opposition to QASA, the Criminal Bar Association (CBA) pledged that until it is satisfied the scheme is lawful, its nearly 4,000 members “acting in the public interest, will not engage with implementing it”.

The threat to seek judicial review (JR) is made in the CBA’s response to the fourth and final QASA consultation, a copy of which has been seen by Legal Futures in advance of its submission by tomorrow’s deadline. The scheme, which aims to set quality standards for advocacy at different levels of practise in the criminal courts, is scheduled to begin on 14 January 2013.

The CBA argues that imposing QASA through the barristers’ code of conduct amounts to regulatory overreach by the Bar Standards Board (BSB), which has devised it jointly with the Solicitors Regulation Authority (SRA) and ILEX Professional Standards. Under the Legal Services Act’s “light-touch regulation”, the body says, “it must be not merely desirable, but necessary, to regulate”.

A second head of argument is that “regulatory changes must meet such necessity as is identified”, namely raise standards of criminal defence advocacy, and “this scheme will not achieve that”.

More broadly, the association claimed QASA aims to provide “a cloak of respectability” for contracting for publicly-funded criminal defence advocacy funded on a ‘one-case, one-fee’ (OCOF) basis. If this happens it will lead to lower standards and “the independent referral bar will be destroyed… contrary to the public interest”.

The CBA revealed that, with other representative organisations, it was taking leading counsel’s opinion with a view to seek a JR of any attempt to use the code of conduct to impose QASA. It will argue the quality of advocacy is “primarily a procurement issue” between advocates, defendants, “and the Legal Services Commission, which foots the bill”.

Criminal barristers also renewed their assault on plea-only advocates (POAs). Earlier this year progress on QASA stalled over the judicial evaluation of POAs and a compromise was hammered out between the BSB and the SRA. Underlining its opposition, the association said emphatically: “The CBA could not countenance engagement with a QASA scheme which included POAs.”

Another line in the sand drawn by the CBA includes the inclusion of QCs in QASA, which it believes is “unlawful… without primary legislation” and reduces the “world-renowned rank of QC” to a “purely ceremonial honour”.

Speaking to Legal Futures last week, Michael Turner QC – who has chaired the CBA since 1 September – denied the threat of non-cooperation amounted to a boycott while consultation was ongoing and said it did not arise. “If we JR it and the scheme is decided to be lawful, then [there is a] query whether we would ever boycott it.”

The silk said the strength of the CBA’s response to the fourth consultation was consistent with earlier positions. But hostility among the membership has grown, he reported. “Many of my members have pointed out to me that they believe it is unlawful… and I agree with them.”

He continued: “There is no evidence that the independent Bar is other than excellent at the advocacy that it undertakes and needs such regulation.”

Tendering for criminal contracts would allow “the likes of [private security group] G4S or a solicitors’ group or firm” to use QASA as cover for employing barristers who had achieved the necessary advocacy grade but were not acceptable to the defendant. He claimed: “They will say [to a defendant who complains]… ‘you’ve got the right grade of advocate which is all you were promised’, so client choice and the cab rank rule goes out of the window”.

QASA was a “bridgehead” for a deliberate move to neutralise lawyer-led exposure of misconduct by those in power. Killing off the independent criminal Bar “is exactly what this government wants to achieve because it has been the lawyers over the years that have exposed the worst excesses of those in power,” he said.

Mr Turner admitted that reversing the trends he identified might be problematic, but said “If you see as I do – and I’ve been at the Bar for 30 years – that what is over the horizon is a steamroller that is going to flatten what is viewed as the best legal service in the world… that is something that I hope that society would, when they begin to understand it, be outraged by.”

 

By Dan Bindman

Tags: bar standards board, criminal law, ILEX Professional Standards, QASA, Quality Assurance Scheme for Advocates, Solicitors Regulation Authority