A call to arms

Call to respond to the fourth consultation on the Quality Assurance Scheme for Advocates; communications between the Bar Council and the Bar; Bar Council elections

Michael Todd QC, Chairman of the Bar

The deadline for responses to the fourth consultation on the Quality Assurance Scheme for Advocates (QASA) is 9 October 2012.  The consultation was issued by the Joint Advocacy Group (JAG) in July. The scheme continues to contain objectionable elements, some expected, others not; plea-only advocates; grading of cases by solicitors; the inclusion of Silks within the scheme. The objections have been made, but those elements remain. Many of those issues are of importance to the due administration of justice, to proper access to justice, to the public interest, others to the Bar as a whole. The Bar Standards Board (BSB)
has made it clear that it intends to introduce over time quality assurance schemes across all areas of legal practice. This is the last consultation before the proposed roll out of QASA across the Circuits, starting with the Western and Midland Circuits. If any objectionable elements become embedded in this scheme for criminal advocates, we can expect to see them in future schemes for other practice areas. The pass will have been sold. How will those elements affect your practice area?

It is for those reasons that I have written to the chairs of specialist Bar associations (SBAs) and to all heads of chambers (HoCs), encouraging them to put in responses to this consultation. I encourage as many of you as possible to respond; don’t leave it to others to make your points; don’t just say that you agree with the response of one SBA or another, because there can be little doubt that such responses are discounted. The Bar Council will be putting in its own response. The BSB has been encouraging us all to respond. On something as important as this, don’t let us disappoint; let us provide the BSB with the quality and quantity of responses which it seeks. If we don’t make the arguments now, if we do not dissuade it from its present course, we will be left with, and we will be bound by, the scheme as presently formulated, whatever the public interest, whatever the impact on the profession.

Many have asked, some in desperation, others in resignation: “but what is the point of responding? After all,” they argue, “the structure of the scheme has been determined and nobody will heed our responses, why should we waste our time?”

I have much sympathy with those questions and those points of view. Often I have responded to consultations, but to no apparent effect. The Bar Council regularly has similar experiences. The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) is a case in point. The government suffered 13 defeats with principled amendments to the bill in the House of Lords, each, except one, of which was reversed when the bill returned to the Commons. A year’s work by many at the Bar Council, and many at the Bar who gave of their time and services pro bono, to lobby against the egregious elements of the bill, resulting in little, if any change. The Bar Council’s efforts in relation to fee cuts met with similar results. Contrary to the views of some, we don’t just cosy up to the government! But we have no magic wand.

The political arithmetic in Westminster ensures that this government gets its way, when it is determined to do so; and we can be assured that another Labour administration will be no more sympathetic than the present administration.  The level of disengagement of the Bar, particularly in the Circuits, with the Bar Council and what it does is of particular concern to me. That disengagement has been made clear to me on my Circuit visits. It has also been made clear at the focus group meetings that the member services board of the Bar Council has been holding on Circuit.

Improving communications between the Bar Council and the Bar was a central plank of my inaugural speech. The Bar Council communicates what it is doing in many ways;   through Counsel magazine, through its website, through my written statements to Bar Council which are posted on the website, through the Circuit representatives and administrators, through the SBAs. Maybe we do not do it well enough, or in the right way, or perhaps what we have to say is unwelcome, or is simply not heeded. We will strive to do better. But communication is a two-way street, a dialogue. The Bar Council needs to hear what the Bar wants from it.

Although there is already much involvement between the Bar and the Bar Council, with considerable amounts of time and effort being provided pro bono by the Bar, both in London and on Circuit, greater engagement is needed. The forthcoming Bar Council elections, are due to take place during the period 5 – 19 October. Interested candidates will be able to put their names forward from 7 – 21 September.

The Bar is facing unprecedented pressures and changes in what we do, how we are organised and how we provide our legal services, from legal aid cuts, greater regulation and increasing costs of regulation, QASA, the prospect of price competitive tendering (PCT) and “one case one fee” (OCOF), and alternative business structures (ABSs). I cannot think of a more important and more opportune time at which to become engaged than now.

I would encourage you all, whatever your practice area, to consider standing for election to the Bar Council. If you are disenchanted with the work of the Bar Council, or if you simply wish to help shape its policy for the future, these elections are important to you. The opportunity is there. As I have said many times, and in respect of many matters, we must engage. We may not be able to achieve the objective which we seek through engagement, but what is certain is that if we do not engage we have absolutely no prospect of exerting any influence.

I hope that you have all managed to have an enjoyable and refreshing summer break.