The Bar must stand firm against QASA

The question for advocates is what to do next. The Bar indicated it would not submit to the quality assurance scheme for advocates (QASA) and that consensus appears to be holding.

What people must understand is that advocacy is already subject to scrutiny and assessment. An advocate is only as good as his last case. That principle has held true for centuries.

To say that independence of the advocate and of the judiciary is not at least seen to be impaired by the scheme is simply wrong. Any good advocate will have had to argue robustly with a judge who is intransigent. Those same advocates will have won and lost those arguments, but they will have all seen judges behave differently – sometimes downright offensively to them – after such clashes.

Any good advocate will have had to pacify a client who believes that the trial strategy advice being given is not just to avoid a run-in with the judge.

Doing these things is part of the advocate’s job and it is done fearlessly and properly. But to have the knowledge that there is, or might be, another agenda in the background undermines the independent advocate. Add that to the commercial pressures exerted on higher court advocates (HCAs), mix in a little government-sponsored motivation to run a case a certain way, and you have a criminal justice system that does not look or feel independent.

What is it all for? To do something that can be done in any number of other ways – as was argued in the Divisional Court.

A continued refusal to participate in QASA is likely and a return to ‘no returns’ and other types of direct action may be the only thing left between truly independent advocates and oblivion.

No returns taught us four things: 1) courts can accommodate counsel’s convenience after all; 2) embarrassing the government/MoJ brings them to the negotiating table; 3) the public may not have much love for us, but the government is in a similar PR position; and 4) we can stand firm collectively as unified professions when our core values are threatened.

There’s nothing wrong with judicial scrutiny of advocates; it goes on daily. Judges could even be asked to step that up. The public would be adequately protected, advocates would be protected, the Criminal Justice System (CJS) would maintain its integrity, and not one extra penny would have to be spent making it happen.

The problem may be that the Bar, solicitors and legal executives are stuck in a battle for control between their regulators and the covetous LSB. That renders this argument political and, like so many recent decisions regarding the future of the CJS, it offends against the separation of powers and it should offend against that most British of things: the sense of justice.

If the LSB wants to be our collective regulator, it should come to the table with clean hands. SJ

Benjamin Knight is a barrister at Central Chambers. Knight co-hosts a podcast on legal issues at northpodlaw.co.uk