Hence the new quality assurance scheme for advocates, known from its initials as QASA and pronounced kway-zar. It’s not something that barristers ever wanted. Most will tell you they don’t need it. But it is supported by the judiciary, which is concerned about poor quality advocacy. To an outsider, it seems a bit like an airport security search: utterly tedious, an unnecessary waste of time and money for almost everybody involved but worth having if it manages to catch the occasional individual who should not be allowed through.
Why then has the criminal Bar voted no to QASA, almost unanimously? And will the regulators back down? Before I deal with these questions, I ought to explain how the quality assurance scheme is meant to work.
QASA will apply to all criminal advocates in England and Wales, whether they are barristers, solicitors, legal executives or associate prosecutors, whether they prosecute or defend and whether they are employed or self-employed. Once the scheme starts, lawyers who want to carry on doing criminal advocacy work will need to be accredited to the appropriate level by a regulator.
There are currently three advocacy regulators: the Bar Standards Board (BSB), the Solicitors Regulation Authority (SRA) and, in the case of chartered legal executives, ILEX Professional Standards. Each of these bodies has introduced rules to make QASA binding on those it regulates. A Joint Advocacy Group set up by the three regulators has published a handbook telling criminal advocates what they need to do.
This explains that QASA is to be phased in over a period of up to three years. Lawyers who practise mainly in the Midland and Western Circuits must register between 30 September and 9 March next year. Those in the south-east must register in the early months of next summer while advocates in the rest of England and Wales must register by 3 October 2014.
Failing to register is not, in itself, a breach of the new rules; but conducting criminal advocacy whilst unregistered will become a disciplinary offence.
Under QASA, there are to be four levels of work. Level 1 covers advocacy in the magistrates’ court, including related appearances in the Crown Court. Level 2 applies to straightforward trials in the Crown Court. Level 3 covers more complex Crown Court cases while level 4 deals with the most demanding trials of all.
It’s up to the lawyers involved in each case to categorise it at the appropriate level and revise that level if circumstances change. Advocates cannot appear at even the simplest hearing at a case that has been categorised in one of the higher levels unless they are appropriately accredited.
Of course, some lawyers might feel tempted to under-value a case in order to keep work in-house. But doing so deliberately might amount to a disciplinary breach, which a judge could refer to the regulators.
In most cases, there is more to accreditation than registration. All barristers and solicitors may register at level 1; so can chartered legal executives with appropriate training. That accreditation will last for five years; to renew it, an advocate must complete advocacy-focused continuous professional development.
Those who wish to register at one of the higher levels will follow a two-stage process. First, they must register with their regulator at the level at which they believe they are already practising. That will immediately give them provisional accreditation, although some will be spot-checked. They must then apply to be fully accredited within two years.
For advocates doing trials, that requires successful advocacy assessments by two judges. Each advocate must ask the judge in two or three of their first consecutive, effective trials at the selected level to complete an evaluation form — which the advocate will then see.
So the system is sufficiently flexible to permit accreditation despite one poor performance — or one poor judge. However, judges are being trained to assess advocacy. They are told to look for competence at the specified level rather than excellence and advised not to mark down advocates who may have a style that tends to grate. Advocates do not need to be marked as “competent” in all categories on the form. And any judge who has been through the training may raise concerns about an advocate’s competence through QASA at any time.
An early draft of the multicoloured evaluation form was savaged mercilessly by Moses LJ, delivering the Ebsworth lecture in February 2012. The form, which has since been revised, still looks unnecessarily bureaucratic. But you should have no difficulty in passing if you have the appropriate level of knowledge, experience and skill for the level at which you are being accredited; if you were properly prepared for your case; if you presented clear and succinct submissions; if you conducted focussed questioning; and if you were “professional at all times and sensitive to equality and diversity principles”.
It’s thought that most barristers will be accredited at level 3 and most solicitor-advocates will be at level 2. QCs are expected to seek accreditation at level 4 but so are some senior juniors. Although the requirements for “level 4 QCs” will be exactly the same as for other level 4 advocates, that title may be used by those to whom it applies and it will appear in BSB statistics. QCs appointed since 2010 will receive full accreditation for five years; there are also to be transitional arrangements for solicitor-advocates.
Solicitors and barristers will be able to reach higher levels through assessment or judicial evaluation. Chartered legal executives do not have full rights of audience in the Crown Court and so will not rise above level 1. The accreditation level of each barrister will be published by the BSB.
For barristers, registration fees range from £80 (level 2) to £120 (level 4). Progression to a higher level costs between £125 and £375. In all cases, accreditation must be renewed every five years.
Controversially, QASA covers “plea-only advocates” — lawyers who do not take on contested trials. There are thought to be hundreds of solicitors who do only mitigation work. Since these advocates never appear in contested trials, they will have to go to assessment centres for evaluation against all the advocacy criteria. They may be accredited for non-trial work only at level 2 and level 3.
If the scheme had been designed by the Bar Council alone, it certainly would not have come out looking like this. Maura McGowan QC, Chairman of the Bar, told me that a scheme which permitted mitigation by advocates who did not regard themselves as capable of running trials was “fundamentally flawed”. There were “unpleasant tensions, for both sides,” she explained, when an advocate had to tell a client: “I can represent you, but only if you plead guilty.”
Vanessa Davies, director of the BSB, said the regulator had no power to stop solicitor-advocates appearing in the Crown Court. Given that the practice had developed, perfectly lawfully, in response to previous legal aid reforms, the regulators saw it as their responsibility to ensure that those involved met minimum levels of competence.
Barristers have other concerns about QASA. McGowan does not think that silks should be registered at any of the existing levels. If silks are to be included at all, she says, they should be included at a new level 5. Other barristers say that if they have to put up with QASA then it should be used to assess excellence in individual advocates, not merely competence.
The Law Society also has concerns, particularly about judicial assessment. A cynic might think that solicitors are at greater risk than barristers of being marked down by judges, most of whom were previously at the Bar. But solicitors offer a more principled argument, and one that applies just as much to barristers: how can you argue your client’s case fearlessly before a judge who could put you out of work?
For reasons that I shall explain, both the Bar Council and the Law Society are inhibited in criticising their respective regulatory arms, the BSB and the SRA. So the Law Society has directed its criticism against the Legal Services Board, the profession’s super-regulator, arguing recently that implementation of the scheme should be delayed because of the “profound shifts and uncertainties” facing criminal practitioners in the light of the government’s legal aid reforms.
QASA had its origins in Lord Carter’s review of legal aid procurement, commissioned by the previous government and published in July 2006. Carter recommended a minimum standard of quality for all legal aid practitioners, assessed through peer review. Somewhat optimistically, he proposed putting quality monitoring for publicly funded criminal advocates in place by April 2007, with other advocates to follow.
Until last summer, the criminal Bar hoped that it could make QASA work to its advantage. Max Hill QC, who was chairman of the Criminal Bar Association (CBA) at the time, said in July 2012 that there would be a place for QASA if it was implemented with sufficient rigour to “preserve our workplace for those who do criminal casework best and therefore to expel those who do not belong” — by which he meant plea-only advocates. He also regarded QASA as unnecessary for QCs.
Those conditions were rejected, as we have seen. Positions hardened. And then in April the government published a consultation paper called Transforming Legal Aid. It’s covered in more detail elsewhere in Counsel. But perhaps its most contentious proposal is to introduce competitive tendering for publicly funded criminal work.
Under these plans, large law firms would tender for a share in the right to provide most criminal legal aid services within an area of England and Wales. Clients would no longer be represented by a lawyer of their choice.
The CBA is united in its opposition to the proposals. Its chairman, Michael Turner QC, told me that his members were considering “an appropriate legal challenge”. He was presumably thinking of article 6(3) of the human rights convention, which says everyone has the right “to defend himself… through legal assistance of his own choosing”. According to Baroness Deech, who chairs the BSB, the government must be close to finding itself in breach of that provision.
Deech told the House of Lords in May that the cuts in legal aid endangered the future of the profession; they also offended against every objective in section 1 of the Legal Services Act 2007. Her opposition to the proposals is hardly controversial. But what the BSB and the CBA disagree about is whether there is any link between quality assurance and the government’s plans. Deech insisted in March that ministers would push ahead “with or without QASA”. And Davies told me that quality assurance was a perfectly reasonable thing for any regulator to require.
Turner thinks there would be no need for QASA if it were not for the government’s reforms. “The sad reality of QASA is that it’s only necessary because the intention is to cut down the choice of supplier to one,” he told me. Since the criminal Bar believes that QASA and the reforms are “separate but linked”, Turner and his colleagues are considering a legal challenge to QASA too.
They certainly hope to prevent it getting off the ground. “If the government continue with this madness, we will not sign up to QASA,” Turner insisted. “The solicitors’ profession will not co-operate with QASA either. And even if they are forced to sign up, they will not send in their evaluation forms or go to the assessment centres.”
The dispute between the government and the profession over legal aid will presumably come to a head long before the first QASA registration deadline next March. If the government backs down, surely the CBA would then drop its objection to QASA?
“We are not using QASA as a gun to get rid of price-competitive tendering,” he stressed. The CBA did not want QASA, even on its own — and would not sign up to it.
But the BSB is determined to go ahead with QASA, regardless of what the government does and regardless of the current boycott. A breach of the QASA rules will be treated in the same way as any other breach of the Bar’s code of conduct.
“Being a regulator, we are holding our nerve,” Davies told me, “because that’s what the public interest requires us to do. That said, we believe that QASA is the wrong target for the CBA.”
McGowan says the Bar Council had “put its case vigorously” to the BSB for improvements to QASA. But she does not accept the CBA’s view that QASA is linked to price-competitive tendering. She says the government could always argue that any solicitor or barrister with a current practising certificate meets the minimum quality requirements to tender for legal aid work.
If the Bar Council is so unhappy with QASA, why doesn’t its chairman put her foot down? After all, it’s the Bar Council that is the statutory regulator; the BSB is only its creature.
“Because, ultimately, the real threat comes from the Legal Services Board (LSB) in saying we are not giving the BSB proper autonomy and independence,” McGowan said. She fears that the super-regulator could then intervene and take regulation away from the Bar Council and the BSB.
Could that really happen? “I think it’s a serious prospect,” she replied. McGowan recalled what David Edmonds, who chairs the LSB, had told MPs in March. In two or three years’ time, he thought, it should be “possible to create a regulator that applied itself across the whole landscape”. This, he said, would be clearer for consumers and for lawyers — though, as he rightly acknowledged, “there would be enormous resistance if you attempted to wind the existing primary regulators into a single organisation”.
So to preserve what’s left of the Bar’s self-regulation, McGowan must choose her advice to the profession with great care.
“If people choose not to sign up to QASA, that’s a matter for them,” she says. “But they must act in accordance with the code of conduct. To do otherwise would not be in the public interest.”
x As Counsel went to press, the Legal Services Board (LSB) issued an extension notice to allow it further time to consider the QASA scheme. The Joint Advocacy Group, which submitted the scheme to the LSB for approval in early May, believes that the application will still proceed in time to enable the current implementation timetable. The June publication of the scheme handbook, however, has been delayed until the outcome of the LSB’s deliberations is known.
Joshua Rozenberg, Legal Commentator