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