Why QASA matters to everyone. Of monkeys and peanuts.

Would you trust supermarkets with your freedom? Would you trust them to keep dangerous criminals off the streets?

When a serial killer sits in the dock would you want the person prosecuting them to have been chosen for ability or cost? If you found yourself wrongly accused would you be heartened to learn that your lawyer was chosen to maximise a profit margin?  

The Criminal Bar Association think that such a future is approaching. Legal Half Hour spoke to Barrister Ian West, from Fountain Chambers, Middlesbrough, about why and how this is happening and how the CBA is trying to stop it.

(Mr West’s answers were so comprehensive that this has become something of a guest blog rather than a simple interview so for the sake of clarity we’ll put anything that comes from us here at Legal Half Hour in bold)

First let’s cover the terms for those reading who are unfamiliar with them.

What is QASA?

QASA is the Quality Assurance Scheme for Advocates, it’s a structure that’s been consulted about for the past few years by the regulators of the legal profession...the idea supposedly being to set standards of advocacy across the board to all the professions...I think there is a different agenda.

What is BVT and how does it relate to QASA?

At the moment barristers and solicitors have their own ring fenced fees for the different functions they perform in a criminal case. What the government want to do is to pay one fee for the whole case, from the advice given in the police station and appearances in the magistrates court (usually done by the solicitor) through to the Crown Court trial and sentence, which is usually done by a barrister in independent practice. This single payment is One Case One Fee (OCOF). Under OCOF, contracts would be put out to tender, and awarded on the basis of price. This is what the government calls Best Value Tendering, or BVT.  Contracts are likely to go to only the largest firms of solicitors, but, more likely still, to massive commercial organisations like Eddie Stobart, Tesco, the Co-op, and G4S which are presently assembling their forces to offer ‘pile it high, sell it cheap’ justice.

If OCOF and BVT come in (and the Criminal Bar Association believes that they are inextricably linked to QASA) it will in effect kill the independent bar. The contracts will go to the big corporations, who will not outsource their advocacy needs to the independent bar, as solicitors have traditionally done, but will bring barristers in-house. And of course they will not be looking for the best advocates, whom they will no doubt regard as too expensive, but for newly-qualified, inexperienced ones who will come more cheaply. And this is where QASA comes in.

QASA is not, as the government would have you believe, about raising the standards of advocacy but is, on the contrary, about introducing minimum standard thresholds. QASA is cynically designed as a defence mechanism which will give the government a defence to claims under the Human Rights Act, when the first disgruntled defendant says ‘I just got 15 years and my advocate was rubbish’. The government will be able to hold up that advocate’s QASA certificate and say ‘No he wasn’t, he was independently certified to do your case’. QASA is actually about perpetrating a fraud on the public, giving a cloak of respectability to cheap, bad (but QASA-accredited) advocates.

It is important to understand that the QASA is being introduced to cover areas of the legal profession which are usually publicly funded. Market forces don’t apply here in the way they potentially can at the higher end of the commercial bar as the clients are usually too poor to afford legal representation. The companies which bid for contracts have no profit incentive to offer the ‘best’ services in order to attract high value business but will structure themselves to profit from high volume contracts. They will employ the cheapest advocates that they can find to service their client base at each level of QASA accreditation. Their profits will come from minimising costs, not maximising quality.

If the profession was consulted why are you protesting?

There hasn’t yet been consultation on BVT, that will come in April, but there has been consultation on the necessary precursor to it, QASA. The government must have QASA in place before they can put contracts out to tender. You can’t have just anybody doing Crown Court trials. A minimum threshold of quality must exist, but it needs only to be a minimum threshold, and this is what QASA is. The CBA have tried to put our case to the powers that be, but they have not listened. The Bar Standards Board (BSB) has simply not fought hard enough; not in the public interest, nor in the interest of the profession which they regulate, to get a scheme in place which actually ‘does what it says on the tin’. QASA, as it stands, is seriously defective. The BSB has not listened to what we’ve said, and they’ve rolled over in the face of demands from other interest groups in the Joint Advocacy Group (JAG) which formulated the scheme, and in so doing they have sold the Bar short. More importantly, they’ve sold the public short on the issue of quality which is what this scheme is supposed to be all about. 

And now the CBA and many barristers are taking to Twitter and to the robing rooms of courts around the country to declare that they will boycott QASA. This goes beyond the negotiation that many would expect of the bar. So why is there a need for direct action in this case?

We’ve learned the lessons of history. In my quarter century in the profession I’ve seen the Bar capitulate to successive Lord Chancellors over many issues. We always put up an effective argument - as barristers, that’s what we do - but we’ve allowed Lord Chancellors of both parties to become complacent in their dealings with the Bar. They take the view that we’ll talk a good game, but we won’t fight.

The last time we lost a big battle was in 2010 when criminal barrister’s fees were cut by 13.5%. We protested, but they did it anyway. Now the Bar is waking up to the realisation that QASA and BVT will be the end of the profession if we don’t stop it. We’re dealing with a Lord Chancellor who is determined to cut spending, who won’t stand up to the Treasury and who’ll pick what he thinks is the softest target for cuts. The CBA is hoisting a banner which the profession can rally behind and the troops in the trenches, of whom I am one, are now angry enough to actually do something. We are ready to fight.

Now let’s turn to some of the counter arguments being put forward. People, from the Attorney General to blog post commentators, have suggested that the Criminal Bar will be perceived as wanting to avoid scrutiny, that it is afraid of competition, and that it is too large in any case.

Is the bar afraid of competition?

It is entirely wrong that we are afraid of competition. In our Response to the fourth QASA consultation, the CBA not only pointed out the problems with QASA, but we put forward an alternative, one that will actually deliver higher standards of advocacy, and not merely pretend to. This QASA scheme will perpetrate a fraud on the public, and we will not lend our aid to that. Because we believe in quality and indeed thrive on it, we have put forward a scheme that would actually work.

Is the Bar too large?

It is certainly true that there are more barristers competing for briefs now then there were when I started my career. But that’s not really a problem for anyone but the barristers themselves. It’s no problem for the government if I choose to be a part of a competitive profession. You wouldn’t say there are too many taxis. Larger numbers actually increases competition, the choice for the 'consumer', and, with it, quality.

What do you say to those who argue that criminal barristers are feathering their nests at the expense of the public who do not use their services? There is was a comment on Marc Brown's blog post on the CBA's blog by someone called Jamthes which seemed to sum up this point of view. How would you respond to them?

Many people think that the criminal justice system is nothing to do with them because they are law-abiding citizens and will never need a defence barrister. But that is wrongheaded thinking. Barristers prosecute as well as defend. I prosecute serious and dangerous criminals, and I like to think that I do it well. In so doing, I work for Jamthes, in the interests of the law-abiding society that we all enjoy. Put another way, barristers play their part in keeping the streets safe for all of us.

So the quality of criminal justice administered in our courts does matter to everyone, even if they are never charged with a criminal offence. Think of it in this way. Every road user has an interest in there being in place a robust system of licensing other drivers. You wouldn’t want someone driving a heavy lorry, or a bus full of schoolchildren, without that person having gone through a rigorous assessment process. Road safety is in everyone’s interest – other road users, taxpayers funding hospital services everyone. The criminal justice system is the same. Everyone wants the guilty convicted and the innocent acquitted, that means having in place not minimum standards, but high standards, or everyone loses – in terms of miscarriages of justice, and the cost of putting them right. The independent bar is a valuable resource for everyone – victims, taxpayers, everyone - not just those accused of crime. Jamthes, who speaks for many, may never need a defence barrister but he does, I’m sure, want criminals properly prosecuted. QASA pretends to do this, but does not. It only gets advocates over a minimum threshold, and that’s as dangerous for us all as it is to allow people to drive a heavy goods vehicle with just a normal driver’s licence. The public wouldn’t want that and they wouldn’t want the criminal justice system to be downgraded either.

Is the Bar Unaccountable?

Far from it. A barrister is accountable every day to the solicitor who briefs them, and to their lay client. If he doesn’t perform adequately, he doesn’t get another brief. A barrister is only as good as his last case. It’s this scrutiny which means that barristers in independent practice have to provide an excellent service, keeps standards up, and ensures that barristers have to ‘keep at the top of their game’. That is why the profession has been delivering top quality service for a thousand years. Going back to the point about there being a lot of barristers, the very fact that there are so many of us increases the competition, and raises standards.

At the moment, fees are set according to structured guidelines, which means that barristers don’t compete with each other on price; only on quality. Our professional rules mean that we cannot undercut each other, and, as I hope is obvious, this serves the public well. Price competition will mean a ‘race for the bottom’ and quality will suffer. That is in no-one’s interests.

So, to recap, if QASA and BVT come in, the huge corporations that are likely to win the contracts will not care so much about how good you are (so long as you cross the low QASA threshold) they’ll only care about how cheaply you will do the job. Simple economics will mean that bidders will plunder the independent bar for recruits, but from the bottom upwards, in search of the cheapest. And as the old adage goes, “If you pay peanuts, you get monkeys.” This is as true in the legal world as it is in any other. It must not be permitted to happen.

If you take direct action to oppose QASA and BVT, will you win?

I don’t know. I hope so, but I know that we must try. If we don’t, the professions of solicitor and barrister, which play vital roles in our criminal justice system will be destroyed. Forever. There will be no way back once the professions have divided into prosecutors and defenders, as they will. English criminal justice is the envy of the world. Our advocates are the finest, and our judges are admired for the fact that they are wise, and utterly incorruptible. This is family silver of the highest value. In Chris Grayling’s brave new world, are we to see the first sponsored Law Lord - Lord Tesco of Low Low Prices? You may laugh, but remember where you heard it first. The Bar, and solicitors must stand united in opposing the threat, not just to our professions, but to a criminal justice system that plays its part in the peaceful and civilised society that we all, as citizens, live in, and enjoy. We will win, because right is on our side, and because the price of failure does not bear thinking about.