Peace with Honour

Time to end part of our problems and do so in a way that will move the debate to where it belongs: how to uphold access to Justice and allow the criminal bar to survive.

QASA is here to stay. I do not rule out some late amendment, but the chances are falling away.

What is crystal clear is that if we do not join it, we cannot practice. It really is as simple and terrible as that. We can disrupt courts and in that process, other peoples’ right to access, but it is coming. Full stop. End of argument.

The key weakness of our principled and honourable stand is that
at this point, we have not our own agreed alternative quality
assurance scheme in place.

So here is my solution. Or if you prefer, the blindingly obvious way forward to restore sanity, provide a real assurance for the public and put us into an unassailable public perception of integrity and quality. Three simple steps.

1. The bar must devise AT ONCE its own quality assurance scheme worthy of the name. I suggest AKM: an Advocacy Kite Mark.

That scheme can be achieved by a meeting of the chief officers of the Bar, the Circuit Leaders and the Chairman of the CBA deciding whether it should be led by the Inns and/or the Circuits. Then it must be ratified by the Bar Council. The key point is speed: it MUST be ready for purpose before QASA is due to begin.

2. The Bar should then say to the regulator that we will now advise our members to join QASA, but at the same time every barrister will be subject to a much higher professional standard.

3. At the conclusion of the two year review period which the Bar Standards Board have already announced for QASA, the Bar will contend that they have in place a patently better system. Then it will be time for a negotiated change to bring in proper quality assurance for the Bar. Over the two years we can have user panels to monitor the two processes.

Now this is why such a scheme will work and also allow us to fight on where it really matters.

First, the BSB cannot possibly object to a system running coincidentally with their own, which patently is seeking to impose higher standards. Indeed to be fair to them, I predict that they would welcome it.

Second, we can all stop tearing ourselves apart, friend against friend, simply over regulation, and get on with combating the huge challenge of ameliorating terrible cuts and saving if possible the solicitor’s guillotine. That is a huge public relations battle that is yet to be won and I shall continue to offer as much help as I can.

The Lord Chancellor told the Circuit Leaders that QASA was an irrelevance to him. Let us make it an irrelevance to us in a much bigger fight.

PLEASE bite the bullet and save the bar.

The new badge should be YES TO AKM

Advocacy Kite Mark

That is a badge which we must earn and then wear with pride.

Nigel Pascoe QC

 

 

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One thought on “Peace with Honour

  1. Nigel,
    Thanks for your reasoned and constructive contributions to this debate. I should make clear at the outset that I am the Vice Chair of the Bar Standards Board. I am not a criminal practitioner. My practice does however include regulatory and public law and, specifically, advising on the Legal Services Act 2007 regime – which is the regime within which the BSB must now function.
    The BSB’s obligation is to regulate independently in the public interest. I have explained elsewhere, in tweets and in posts in answer to Ian West’s blog at http://bit.ly/104VTX0 , why the BSB considered itself duty bound, notwithstanding opposition from many at the Bar, to take the decision that QASA was needed in order to assure competency in criminal advocacy and, in particular, why we regarded QASA as necessary irrespective of what the MoJ’s procurement plans might be and why we concluded that it was right and in the public interest that QASA should also extend to those who have been dubbed PoAs. I am not going to go back over old ground.
    It remains my belief that there is value to the public and to the Bar itself in maintaining separate regulation of the Bar, rather than merging into one monolithic regulator, for whom the activity of advocacy would be, at best, very much a minority interest. Nowadays, that separate regulation has to be independent from the representative functions of the Bar Council, but the Bar and the BSB have in common a determination to ensure that the public interest in the integrity and effectiveness of our system of justice is safeguarded from harm. Across a host of other areas, QASA being far from the only thing the BSB has on its plate at the moment, we are working towards that goal. Those who oppose QASA might at least do us the justice of recognising we have the same end in view, even if in this instance we disagree about the means. Anyone who believes that the BSB’s decision can be shown to be irrational, or based on irrelevant considerations, or otherwise flawed in public law terms, has the remedy of JR. Denigrating the regulator isn’t the answer.
    I am concerned that the public will see the No To QASA campaign as the Criminal Bar fighting shy of appraisal at a moment in time when (as one has only to look at this Daily Mail piece to appreciate http://bit.ly/YpMHWC ) the Criminal Bar needs public support more than ever if the difficult issues raised by the MoJ consultation are to get a fair hearing and a thorough and constructive debate. I am also concerned that a campaign of non-cooperation with QASA will do nothing to forward sensible debate about those issues and, on the contrary, will make a reality of the worst predictions about the Criminal Bar losing its work to others. You don’t have to be a criminal barrister yourself to think that that outcome would be a loss to “an independent, strong, diverse and effective legal profession” (one of the regulatory objectives). Strikes that leave clients unrepresented could not possibly generate public sympathy for the strikers’ cause, and would force the regulator to address any resulting breaches of the code. I cannot see this course of action as being in the interests of the Criminal Bar or in the public interest. That is why I have spoken out about the “No To QASA” campaign. It is clear that you share these wider concerns, whilst disagreeing with the BSB about the specific issue of QASA.
    You are right that QASA is concerned with basic competence. That’s because the regulatory concern is to identify those who should not be allowed to carry on this type of work: you can’t deny someone the right to practice because they fail to reach the standard of excellence. We took the view that it was in the public interest that there should be one scheme for all, with judicial involvement, and that the right thing to do was to move forward with QASA. The judges could not be expected to cooperate with a proliferation of different schemes. Nor are those who depend on the integrity of the criminal justice system well-served by allowing a plethora of competing definitions of what amounts to basic competence in that field of practice. If you believe QASA can be improved (and it would be very surprising if a new scheme was not capable of some improvement) then the best way to achieve that is to engage with it. User groups can provide practical feedback of their experience of the scheme in operation which can be used to streamline and improve the processes as we roll out the scheme and, through implementation, we can gather evidence which will enable us to take decisions at the 2 year review point as to how best to refine it.
    Within QASA, there is scope for the Bar to differentiate themselves from their competitors on quality, aiming to be the people who reliably score “very competent” overall and who dominate the higher levels of the scheme. However, as you rightly say, it is entirely open to the Bar to develop schemes of their own, designed to act as a kitemark of excellence, operating alongside QASA. Competing kitemarks of excellence can, when they achieve brand recognition, inform consumers and drive improvements in quality; whereas competing standards of basic competence can only confuse consumers and create a risk of regulatory arbitrage. A well designed Bar kitemark scheme would be a welcome development, as far as I am concerned, but it would not take away the need for QASA, which is there to assure the public that anyone, whether they be a barrister, solicitor or legal executive, who cannot meet the same fundamental competence requirements cannot continue.

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