Criminal barristers are preparing to boycott the Quality Assurance Scheme for Advocates (QASA), but only if there is a pledge from counsel outside those circuits affected first not to step in and take the work.
The first phase of QASA will run from 30 September 2013 to 10 January 2014, the accreditation period for the Midlands and Western Circuits. This will be followed by the South Eastern Circuit in spring 2014 and then the North East, Northern and Wales and Chester Circuits.
There is believed to be particular concern on the Midlands Circuit that barristers in the South Eastern Circuit could end up doing the work they boycott, totally undermining the action.
Writing in his weekly update to members of the Criminal Bar Association (CBA), chairman Michael Turner QC said: “We are preparing for direct action in the form of a boycott of QASA, coupled with a refusal, by those not required to ‘sign up’ in the first tranche, to accept work that others are being precluded from doing…
“All circuits are meeting to vote on such action. We cannot call for such action unless there is solid support, including the pledge not to accept work on those circuits affected first.”
Industrial action is also being considered over the government’s plan to introduce price competitive tendering for criminal legal aid work, which the CBA sees as linked directly to QASA.
Mr Turner laid out the necessary pre-conditions for taking action on either: sufficient funds; a united profession (4,270 of the 7,000 criminal law barristers are members of the CBA and he said all need to join); an organisational structure, “to communicate information and decisions both upwards and downwards, and, if necessary, to organise”; advice and support from “other organisations with greater experience of such matters”; and a fighting fund to support CBA members.
Judicial reviews over both QASA and tendering are also being considered, which would take precedence over industrial action.
Meanwhile, the long-awaited response to the fourth consultation on QASA – which closed in October 2012 – was published yesterday. This confirmed the changes to the scheme that were announced just before Christmas  and do not alter the main elements of QASA. These include the two that the Bar has found most objectionable: allowing solicitors in as plea-only advocates through an assessment centre route, and including QCs within the scheme.
Baroness Ruth Deech, chair of the Bar Standards Board – which along with the Solicitors Regulation Authority and ILEX Professional Standards is responsible for QASA through the Joint Advocacy Group (JAG) – said: “The delay in publishing this report reflects how seriously JAG has taken the detailed feedback and that the scheme has been amended to reflect many of the points raised.
“All comments were carefully considered not only throughout this consultation but during the development and previous consultations on the scheme over the last four years. The report explains which further proposals we were not able to accommodate, either because they were minority views or would divert QASA from the legislative objectives that must underpin the scheme.”
She pointed out that concerns about non-trial advocates were only expressed for the first time through the process of developing QASA. “We now understand that this form of practice has operated for some time without any significant calls for regulatory intervention. The Bar Standards Board believes it is better to include non-trial advocates in the scheme, and subject their practice to scrutiny alongside all other criminal advocates rather than to let it continue unchecked outside QASA.
“It is also important for the comprehensiveness of the scheme for silks to be included. Under the scheme all criminal advocates will have to confirm their competence every five years and there is no compelling case for silks to be exempt from this requirement.”
The QASA handbook will be published in June, after which the BSB will run road shows and seminars for barristers. The scheme will be reviewed in 2015.