QASA: part of a sustained attack on legal aid?

Amongst criminal lawyers, the issues surrounding QASA – the Quality Assurance Scheme for Advocates – that have been rumbling on for a few years, is coming to a head, writes Dan Bunting. The Criminal Bar Association have come out very strongly against it which prompted a strong response from Baroness Ruth Deech, the Chair of the Bar Standards Board. It has also managed to achieve the impossible – uniting barristers and solicitors.

Baroness Deech argued that was ‘naive to think that stopping QASA will stop “one case, one fee” or best-value tendering’. ‘In fact, if QASA didn’t exist, the government would have to implement its own quality assurance scheme to fit within the confines of OCOF and BVT.’

‘Even the noisy minority of QASA dissenters might agree that it’s at least better to deal with the devil you know – with their own regulator. As a regulator, it is not our place to enter into a debate about competitive tendering and case fees other than to contribute to the forthcoming consultation from a public interest perspective. Suffice to say that legal aid funding and associated financial pressures are putting pressure on quality. This sad truth makes a quality assurance scheme even more important.’
Baroness Deech

But what is the fuss about? Why should anyone outside of the world of criminal law care? And how can anyone object to a scheme to ensure quality?

Well, it is part of the sustained attack on legal aid and it will be rolled out to all other areas of law soon. Firstly, what is the need for it? There is a perception that there is a ‘problem’ with some advocates in criminal law. Note a perception, rather than any evidence that there actually is a problem, let alone whether this particular scheme will solve what problems may exist. The interests of the client are the most important, and no-one is going to object to measures to ensure quality, but a scheme that claims to offer quality but doesn’t, is worse than no scheme at all – it just gives a false sense of security.

This is not a cost-free scheme – we don’t know exactly how much it will cost, but the figure I’ve heard will be in the region of £150 per practitioner on average – money that in these straightened times few can afford. This will hit disproportionately hardest on those who work part-time. But it’s not just that it’s objectionable.

I’m just going to give one example of where QASA could lead when it’s rolled out in other areas of law. I volunteer at a legal advice centre one night a week. In the last five years we have seen a huge increase in the number of people coming looking for legal help and we are expecting that demand to go through the roof come April. At the moment, we sometimes provide representation – mainly at CICA and Benefit Tribunals, but also at the County Court. If and when QASA covers that, then this would present two problems.

Firstly, cost. To accredit the ten or so people who have been to a tribunal for us would costs £1,500 – even allowing for the fact that some will be covered in their ‘day job’, this is an insane amount given we are relying on kindness to supply us with basic books. Secondly, if someone is doing a couple of tribunals a year they would not realistically be able to meet the criteria for QASA. The consequence? We will stop providing these services.

At the moment, of course, advocacy at most tribunals isn’t regulated. That isn’t an answer however – a barrister or solicitor will still be regulated by their respective bodies even if the scheme doesn’t extend to tribunals (which it surely will). Without blowing my own trumpet, I’ve done a fair few CICA appeals and advised judicial reviews of adverse decisions over the years. But, if QASA came in tomorrow for it then I would have to stop doing them as I simply don’t have the numbers of cases needed for accreditation. Is that sensible?

The argument that Baroness Deech was addressing was whether QASA was linked to legal aid funding. She says that it’s not, nobody believes her. One advantage that crime has over other areas of law is the protection given by the ECHR to criminal legal aid. But, just as the Government will pare it to the bone, they will in time be going after those areas of civil legal aid that are in scope. Their mechanism for crime is BVT/PCT (Price Competitive Tendering). This is in effect a Dutch auction amongst suppliers where the contract will go to the lowest bidder.

Of course, in relation to this the Government will claim that there are quality measures in place. They need a figleaf to pretend that people won’t suffer as a result. And QASA is that figleaf. We have seen from the way that the Government dealt with the closure of the IAS and RLC that they do not care one bit about quality, it’s all about the money.

QASA has united all sides of the criminal professions in opposition. The only thing people don’t agree on is how to pronounce it (I say Kwa-za). There is a reason why everyone is opposed – it’s a con. And the people that suffer will be, as with most changes in the legal world at the moment, is the people that can’t afford to buy justice.





There are 1 comments

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    Are the QASA dissenters really a “minority” as Baroness Deech apparently asserts? One of my (many objections to the scheme) is that, in my opinion it has the effect of restricting access to justice for the consumer, and of restricting the ability of a barrister to act in certain cases, by assuming that there is some special sort of advocacy required for criminal cases and that only those who satisfy the QASA criteria can perform such advocacy. By way of example, I like to think that I am a pretty good trial lawyer and advocate. Since 1976 I have had a broad “common law” practice, doing all sorts of work, including massive numbers of criminal cases at all levels of court from magistrates to House of Lords. I have for many years been a contributing editor of “Archbold” and continue to perform that role. However, it so happens that for several years I have not actually conducted a criminal trial, although criminal law has often formed a part of other areas of my work. As I understand QASA, a person in my position who now accepts a criminal brief would be guilty of professional misconduct, thereby limiting the access of the public to my services and restraining my ability to conduct my trade as a lawyer.
    I have no objection to having the quality of my skills objectively assessed (although I do think that market forces perform that assessment), but I do object to the attempt to conduct such an assessment by forcing lawyers into artificial “specialism” boxes.


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