The Attorney General has urged barristers not to boycott the controversial Quality Assurance Scheme for Advocates (QASA), and warned that if they refuse instructions they have already accepted in protest at the new legal aid rates, the government may “look elsewhere”.
Speaking at Saturday’s annual Bar conference, Dominic Grieve – who as Attorney General is head of the bar – also said that there are too many criminal barristers.
Mr Grieve told a session organised by the Criminal Bar Association (CBA) – which is strongly opposed to QASA, arguing that it promotes basic competence rather than excellence – that it is “impossible for any profession to avoid the level of scrutiny which regulators now provide”.
He said: “I support any process which promotes and bolsters high standards of which the criminal bar is rightly proud, and identifies those who are not able to achieve them.”
Recognising that the creation of ‘plea-only advocates’ is a particular bone of contention, he continued: “I am sure that to refuse to be assessed is not going to strengthen the bar’s case. It will be much better for the bar to demonstrate its ability in this area and leave the issue of plea-only advocates for a debate which I realise is going to continue for some time to come…
“For the bar not to engage constructively with whatever scheme is eventually pursued would I think be counterproductive. Good advocates have nothing to fear from this process.”
During questions, Mr Grieve said he was not convinced by the argument that judicial assessment of barristers represented a fundamental flaw of QASA. Barristers have always had a “symbiotic relationship with the bench”, he said, and judges’ views of counsel have always carried weight.
Fellow panellist Paul Mendelle QC, a former chairman of the CBA, criticised QASA as a “bad idea badly executed” and said it represented a “fundamental rebalancing of the relationship between bench and bar” that was “constitutionally unsound”.
However, Mr Mendelle said that in targeting plea-only advocates, “the bar has been tilting at the wrong windmill for some time”. The role simply recognises work that solicitors have long been doing, he argued.
CBA chairman Nigel Lithman countered that “plea-only advocates will be the death of the bar” because junior counsel will “simply not see any more work”.
On legal aid, Mr Grieve said that while barristers are entitled to turn down new instructions if they view the new fees as unacceptable – as many have pledged to do – he had concerns about them returning instructions that have already been accepted, particularly where a trial date has been set.
He explained: “The disruption caused to the courts may bring about the changes you desire, but equally it also carries with it the very serious risk that within government there will simply be a view that people should look elsewhere for the services we [barristers] provided, and I think that is something the bar has got to bear in mind.”
It was not clear what alternatives the government would look to, however.
Mr Grieve told delegates that “engagement with the process of change is the most likely to lead to satisfactory outcomes for the future of the profession”.
He continued that even if legal aid rates had been going up, the bar would be facing a “very considerable crisis” because a reduction in prosecutions and court use indicated that there was “clearly an oversupply of barristers”.
Mr Grieve noted that despite all the problems facing barristers, their ranks have continued to grow; typically a third of private practice barristers do criminal work.
“This combination of increasing supply and decreasing demand is not sustainable. The criminal bar needs to be at a size where it can thrive with sufficient barristers to allow for competition but with enough work to provide for an acceptable living,” he said.
One solution, he suggested, was to replicate the Crown Prosecution Service’s advocate panel – introduced last year – for defence barristers. This “time-limited list of quality approved advocates” meant those on the panel had enough work to build a practice.
At the same time, in answer to a question from the floor about whether he expected “people of brilliance” to enter criminal law in the future in the way they have in the past – passing on their experience to junior counsel – Mr Grieve said he did not.