Safeguarding our future

The encouraging and disappointing aspects of QASA and the need for ongoing input into designing the final scheme; the importance of the appointment of the new Lord Chief Justice and the fight to preserve the Criminal Bar; and January’s FSA approval of BARCO

Contributor
Maura McGowan QC, Chairman of the Bar

QASA. The BSB issued an announcement jointly with the other regulators just before Christmas on the form which the scheme will take when the two year trial period begins.

The good news was that the obligation on the individual practitioner is not as great as originally proposed. A barrister will now have to provide two assessments over a two year period. The disappointing aspects of the scheme mean that there is still a place for “plea only advocates” and that silks are to be included. There are strong arguments on the damage to the public interest of both these aspects of the scheme. Those arguments will not be abandoned; we will continue to demonstrate their force and to propose proper and effective assessment of quality, not just competence.

It is vital to remember that this is a trial and that all aspects of the scheme will be under constant review. We will set up a monitoring group to collate and analyse the experiences of practitioners. We will want to hear views and comments. I do not want to wait until the end of the trial period to begin the process of review and comment. We should seek to have a stronger hand in designing the final scheme. We must not end up simply reacting to consultations drafted by others.

At the start of the year I attended the swearings-in of the new President of the Family Division and Chancellor of the High Court. Although it was a very formal occasion, full of pomp and circumstance, there were moments of humour, particularly the lack of a judicial biro to sign the judicial oath. Cuts...

It was a reminder that as a profession we sometimes fail to give ourselves credit for the fact that we provide society with a judiciary of tremendous skill and integrity. Asked why he litigated here, a Russian made the wry comment that it was impossible to buy a judge here. Despite the bewilderment of tourists at the outfits, the universal regard for our judges is a fact that is recognised and appreciated.

Later this year we will see the appointment of a new Lord Chief Justice. This has already made the non-legal pages of the newspapers. It arouses great interest and every informed person is concerned, not necessarily as to who it will be but that the best person for the job is appointed. For the beleaguered criminal practitioner it is worth remembering that this interest arises because the newly appointed judge will be the head of what is effectively the Criminal Division of the High Court. The proper administration of criminal justice is at the core of a democratic and well-ordered society. The effective prosecution and defence of allegations of crime is essential. To maintain those levels of skill requires fair and reasonable reward. The Criminal Bar provides the greater part of advocacy at the higher levels; it does so with skill and integrity. It must be properly paid for that expertise. I will do all I can to ensure its future is safeguarded.

That means we have to meet the “fat cat” criticisms with factual answers and not just angry despair. The figures splashed around have to be viewed for what they are: the annual turnover of a “small business enterprise”. They include VAT and expenses, which on no accurate or honest basis can be described as income. The other arguments such as chambers expenses (staff and office) and payments falling into one year are well known but worth repetition.

Sometimes our traditions and core values are dismissed because they are portrayed by some lazy journalists and commentators as old-fashioned. The “cab rank” rule is widely misunderstood or deliberately misconstrued. The events in Delhi at the beginning of January demonstrate only too clearly the true value of the rule. That a local Bar would advise its members that to represent defendants accused of serious crime would be immoral is an anathema to us. The outrage on the part of many practitioners is a good barometer as to how important the Rule of Law is to the Bar.

Finally, really good news. The FSA granted approval to the BARCO scheme in January. This means that the account, which is owned and managed by the Bar Council, has started its pilot and we are looking to launch the full programme in the spring. Being able to deal with client money and fees through the account means that the Bar is more adaptable in meeting the needs of clients who want to use the option of direct access to a barrister. It will immediately make taking instructions directly, both domestically and internationally, more straightforward. It protects the position of both client and counsel and has the added attraction to the client of returning all the interest raised on any funds held in the account. It will have an immediate impact on chambers that do commercially funded work and their arrangements but is also of great potential benefit to publicly funded sets looking to attract more direct access work. It will make the administration of clerking such work much easier.