Baroness Deech
Apologies in advance to those not practising at the criminal bar but this month’s update will deal solely with QASA. Anyone who keeps up with the twittersphere will know that my Opinion Editorial feature in Legal Futures about the Scheme prompted a spirited and eloquent response from the criminal bar. I wouldn’t expect anything less but it is important to understand that we have now moved beyond debating whether or not QASA should happen. It is happening and the purpose of this message is to explain why.
The Bar Standards Board has been accused of not listening to those who oppose QASA. However, as a regulator we have an obligation to act in the public interest and whilst we have listened to those who oppose the scheme and considered their responses we have not, in the end, agreed with their point of view. All the comments, both negative and positive, were carefully considered during the development of, and consultations on, the Scheme over the last 2 years. The publication of the fourth consultation responses shows that we have continued to listen and have amended the Scheme to ensure that it meets the regulatory objectives and the public interest. Some of the comments I have seen on twitter seem to confuse the role of the Bar Standards Board as regulator with that of a representative body.
Firstly, it is not within the scope of QASA to alter patterns of criminal practice that are otherwise lawful. As matters stand, it is lawful for individuals to choose not to take on trials and some of them are barristers. There are vehemently held differences of view as to whether this pattern of practice poses risks to quality. If QASA did not exist, there would be no means of establishing whether or not that is right. QASA will apply to everyone, including non-trial advocates, and will therefore ensure that all types of criminal advocacy are undertaken by competent advocates. Those advocates who don’t undertake trials will have to demonstrate that they are competent against all of the QASA advocacy standards, including those that relate specifically to trial advocacy. Given that this practice exists and has existed for many years and that no steps have been taken by those in charge of criminal practice rules to change it, the BSB believes that it is better to include non-trial advocates in the Scheme, and require assessments and monitoring of the results of those assessments rather than to let the practice continue unchecked outside QASA.
As regulators, our focus is on setting the standards expected of a competent advocate for each level within QASA. This should not, and does not, undermine the pursuit of excellence by advocates and merely reflects the regulatory scope of the BSB. QASA will introduce common and enforceable standards that will allow the regulators for the first time to assess, and seek to address the decline, if any, in advocacy standards.
Similarly, the status of silk will not be affected by QASA. Quality assurance by regulators only protects the public if it includes everyone and therefore it includes silks. However, following feedback, the scheme has been amended to include a level 4QC. This will make it clear that in addition to having been accredited at level 4 by their regulator they have also been appointed QC in recognition of their excellence in practice. The regulators have also agreed to open discussions with Queen's Counsel Appointments (QCA) on whether there is scope for any continuing quality assurance role for them in the re-accreditation of QCs in the future. The BSB will seek to evaluate the possibility of developing criteria for a level 5 within QASA itself. The inclusion of silks in level 4QC is therefore a transitional measure pending identification of the right longer term solution. Collection of evidence from level 4QC assessments will help us formulate what that solution should be. Whilst a “failing silk” should be a relatively rare occurrence, it is likely to be particularly serious in its impact should it occur and therefore it is reasonable to include silks within QASA on this basis in order to protect the public whilst that longer term solution is worked out. By the very fact that silks generally expect to demonstrate excellence rather than merely competence, assessment should cause them no practical problems in the vast majority of cases. For those reasons we have considered but rejected the alternative of leaving silks outside the scheme at this stage of its development.
It’s also worth remembering that the impact of QASA will be closely monitored. JAG has committed to review the Scheme in two years’ time, which will provide an opportunity to assess the success of the Scheme as well as identify any areas of improvement.
Finally, it is not the purpose of QASA to pave the way for competitive tendering and case fees. Its purpose is to protect the public against a decline in standards. That risk is already with us and as a regulator we would be obliged to and would address it irrespective of whether OCOF and BVT go ahead. If the Bar is right that future changes in procurement could make the risks to quality greater than they are now, that is all the more reason to ensure the public are protected by the QASA scheme, which has been developed by the regulators after extensive consultation. Delaying QASA helps no one. The BSB will engage, from a public interest perspective, in response to the MoJ’s consultation on competitive tendering. The criminal bar should focus on that undoubtedly important debate. Opposing quality appraisal will not advance the cause of those who wish to oppose these developments but it may do much to damage the public’s perception of the bar.
QASA has been developed by all three advocacy regulators together, and we have every confidence that it will demonstrate the excellence of the great majority of barristers. It may, incidentally, support them in their bids for whatever new tendering opportunities present, as will of course our new entity regulation framework, which will enable the bar to form entities through which to bid. We have accelerated our work on the latter to assist the bar in the light of the revised tendering timetable. We do not seek to prejudge the outcome of the debate as to future procurement approaches, which needs to happen and will no doubt be vigorous. However, we do seek to ensure that the public is protected whatever the outcome and, second, that the bar has all options available to it, in the event that the outcome does include competitive tendering for criminal advocacy. That is our proper role as a regulator, acting independently and in the public interest, and our sole agenda here is to discharge that duty.
The publication of the Scheme handbook in June will explain more about the detail of the QASA process. From then we will be running road shows and seminars to ensure everyone has a chance to ask questions and receive QASA support.
It is important to give the detail full consideration. Please take a moment to do so: we have posted lengthy QASA Q+As. For those with more questions, please email QASA@barstandardsboard.org.uk.
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