QASA – a professional failure

So the Court of Appeal has turned down leave to appeal Leveson et al’s judgment dismissing the judicial review of QASA. Sadly for the regulators, this may be the one issue which sufficient grassroots criminal defence practitioners can rally around now that the CBA has settled the fees dispute for its members. Unless solicitors are sufficiently hacked off with the CBA’s behaviour to sign up in rather larger numbers than hitherto.

My recent lecture on Precarious Professionalism made several points about QASA which I think might bear repeating. They are:

What it tells us about the case for a single regulator:

The quality assurance of advocates (QASA) is the most wretched example [of cross-professional collaboration]. This proposal began its formulation in 2006. It has proceeded in a painfully slow manner and has not improved much in substantive terms in the years it has been negotiated. We might even have had a proper pilot; a roll out and a third iteration in the period it has taken to get to where we are now, which is not a fully functioning scheme.

Or what it tells us about quality and legal aid cuts:

The more-for-less mantra when applied to the wafer thin margins of legal aid work is almost certainly going to substantially increase risks to quality. The same might be true of dramatic change in the personal injury market. Whether compromising quality is worth the reduction in public spending is a political not professional judgement but one which also relates to a core constitutional value, the rule of law. The professions cannot decide this question for governments, but they can influence it.

The professions’ mistake has been to treat their own judgement as the acid test of whether quality, and so the rule of law, is fatally breached. An alternative approach would be to evidence that judgement and do so institutionally. They have not done so. The professions’ knowledge about the competence of their own members is, to put it kindly, modest. And they are being dragged kicking and screaming towards a relatively light touch scheme of Quality Assurance for Advocates.

Most importantly, there will now be no baseline against which one can say whether legal aid cuts have significantly worsened quality. It is, I believe, a massive failure of collective wisdom and – in some but not all quarters – of professional leadership.

Whether the CBA deal has left solicitors and civil legal aid practitioners high and dry in negotiations with the Lord Chancellor or not, the deal has ameliorated the cuts but it has not obliterated them. Real terms cuts in funding are likely to harm quality. The CBA are the last body on this earth* that are going to admit that, having agreed a funding deal, their members work quality is diminished and diminishing, yet that is what the evidence base Leveson referred to suggested.

I have heard Roger Smith refer to the potential that legal aid negotiations risk a devil’s pact: agree the money and we can quietly forget about the quality concerns that were so central to the problem. Both the profession and the Lord Chancellor have an interest in saying, once the dust settles, that we have the finest criminal advocates in the world. Or perhaps in an acknowledgment of straitened circumstances, the finest possible. Let me be clear, QASA is a modest and (probably) flawed scheme. The question is whether it is better than nothing. This is something which I heartily recommend more judicial reviews and eight more years or arguing to resolve.**  Without something like QASA we depend on the likes of Chris Grayling and whoever happens to be chairing the CBA at the time to say that quality is A ok.

____

*I exaggerate, the last body is in fact the MoJ: until it suits them otherwise.

** n.b. this is a sentence which contains sarcasm

Advertisements

About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
This entry was posted in Uncategorized. Bookmark the permalink.

5 Responses to QASA – a professional failure

  1. SM says:

    Why do I let you wind me up on a Friday morning? I agree that we have to recognise the issue caused by de-skilling, itself caused by cuts. I also agree that the CBA is conflicted by having to warn against it to fight cuts (true) and then defend its members as the best. I’m not sure why this is an argument for a single, non-quality based, regulator. Nor is that really a political question because the politicians cannot be trusted to tell anyone the truth about it. If the question was whether the public wanted/it was in the public good to compromise the quality of representation in the legal proceedings that most directly affect most people in the UK (Crime and Family), the answer would be no. Moreover, that debate would start with the judiciary, which is the body best able to address the consequences of the answer.

    In reality, the MoJ lies about the actual question. Wearily, we all accept that, as we accept the fact that the civil servants there are uninterested in administering justice according to any principle involving the public good. The real question being asked by the MoJ is the Treasury’s question and the Treasury’s question isn’t even “what’s a fair rate?” but “how little can we get away with?”. That, of course, is informed by the reality that no one making these decisions meets anyone affected by them.

    Our proposed single regulator takes the same line as the Treasury, which is hardly a surprise, although it is emblematic of the quiet corruption of choosing chaps who agree with you that is the establishment’s way around the acts it passes to keep us all in line. It is disgraceful that the regulator is uninterested in quality. What is it supposed, otherwise, to be regulating?

    QASA has taken a long time because it is a negotiation between regulators trying to take into account the different interests of those they regulate. There is nothing intrinsically bad about that and it doesn’t make the case for a different system of regulation. Personally, I would have liked the BSB to go it alone and develop a gold-standard scheme, which would allow the people actually affected by it to understand the different in quality between best and second-best – as it is daily apparent to those of us who work in the Courts, in terms of time spent (and therefore money saved) and results. But it was felt that the current, pretty dire, scheme was better because unity of approach was better. We will see.

    • Richard Moorhead says:

      Simon – 8 years. Or 6 if we shave off some of the early stuff. Come on. And what kind of progress has been made in that period? QASA has taken a long time because its a negotiation. Sure. Because its a negotiation where the main aim has been resistance. Resistance might be the right thing to do (I don’t think so), but it would be a bit silly to pretend that is not what was going on here. That’s not to say there aren’t good faith objections to the scheme in general or in its specifics (there are, and I share some of them). But MY view is that this delay is something which abdicates quality to a political pissing match, which suits those with political power ultimately and that political pissing match is (primarily) about fees not quality. It was ever thus.

      And I don’t think the MoJ is the only one who has been telling lies about the situation. They advocate dodgy lines based on partial data but then again I have lost count of the times I heard there was no evidence that quality was a problem in criminal advocacy. Telling lies? It’s -well let me remain polite – a highly questionable position, and it is a position that was regularly advanced until Leveson told his bretheren at the Bar otherwise.

      Plus, I am not trying to wind anyone up, least of all you.

      • SM says:

        I don’t disagree with a lot of that. One of the advantages of the current reviews is that there will be an answer to the quality issue from an independent reviewer (Jeffrey) and a Judge (Leveson). It will be interesting to see if the CBA (and its militant wing) will accept the answer if they don’t like it. After yesterday I have a view.

        Resistance is not unnatural. It has not been done before. No other area of either profession is subject to it. There are 3 interest groups, including the Legal Execs, all competing for their own model. There is objection based on it being a bad scheme – as a camel is a horse designed by a committee, so is QASA. I agree that it has become a political football as between barristers and solicitors and that Judges have been unenthusiastic about their own role – and in my view about keeping up quality standards generally.

        My only point is that none of this justifies a single regulator – or any regulator not putting quality first. A scheme for the bar would be relatively straightforward, save for those who remain convinced that asking them to achieve a standard is an insult which is more important than the interests of the client. Every job has antedluvians. But this scheme, like Topsy, just growed. I don’t think that 8 years is a fair comment – it’s only been anywhere near the top of an agenda for about 2.

        I am wound up really easily. Don’t blame yourself 😉

      • Richard Moorhead says:

        8 years is a totally fair comment. Well alright, 6/7, if we allow some time to adjust to Carter. Seriously, it’s pathetic. I know you (and I) can see how normal it is for things to take this long, but that’s part of the problem.

        I have a major reservation about Jeffrey only reviewing one bit of the system. It was cooked up to get Grayling out of a hole and may just end up digging another one. But he’s a switched on individual so maybe he’ll avoid the bear traps.

        Interesting comment on the judges, esp the last bit!

        And (sorry to go on) it’s not the most relevant picture to say it has not been done before. The CPS have done something similar and the sols have been subject to peer review for eons.

        Anyways, keep taking the blood pressure tablets and engaging with me in cross or other mode, it is always a pleasure, for me!

  2. Agree proposals are flawed, and not just for the reasons you have given. Particularly, though, the risk of apparent bias in the involvement of judiciary in accreditation process. That said, there was at least quite a lot of consultation, which probably helps explain the delays. If the result is a dog’s dinner, well so is the handbook: see my review http://www.iclr.co.uk/cart-horse-nut-sledgehammer-review-qasa-handbook/

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s