Court of Appeal dismisses judicial review in controversial advocate assessment scheme

An appeal against the High Court’s decision to dismiss a judicial review of the Quality Assurance Scheme for Advocates (QASA) has been rejected by the Court of Appeal.

The court found that the scheme is lawful, does not interfere with the independence of the advocate or the judiciary and that the Legal Services Board’s (LSB) decision to approve it was neither disproportionate nor unreasonable.

The claimants had argued that the new scheme, which will assess barristers during live cases, was unlawful and undermined fundamental principles of independence. QASA intends to score criminal barristers during trials and prevent those without QASA accreditation from acting in cases. Critics had argued that barristers could be reluctant to appear in criminal cases because of the pressures of being scored on their performance.

Blackstone Chambers’ Dinah Rose QC and Tom de la Mare QC acted pro bono for the claimants at the court. Rose argued that the LSB failed to properly consult on whether QASA would expose barristers to undue pressures and that the LSB should have considered whether QASA could lead to a threat, albeit a perceived one, to the independence of the barrister.

However, Master of the Rolls, Lord Dyson, along with Lord Justice Fulford and Lady Justice Sharp, dismissed the appeal by barristers against the decision to proceed with QASA stating that the accreditation scheme did not undermine the independence of the advocate or the judiciary, and neither interferes with fundamental rights or constitutional principles.

Giving the lead judgment, Lord Dyson concluded: “It is clear that this is a controversial scheme on which opinions are sharply divided. It is no part of the court’s function to express any view about the merits of the scheme. We can only interfere with the decision if it is unlawful. “Those who oppose the scheme can at least take some comfort from the fact that the approved regulations intend to review it after two years. That is an important safeguard.”

Regulatory welcome

The appeal court ruling confirms the LSB’s decision to approve the joint scheme to assure the quality of criminal advocacy put forward by the SRA, Bar Standards Board (BSB), and ILEX Professional Standards (IPS) via the Joint Advocacy Group (JAG).

Chairman of the Legal Services Board, Sir Mike Pitt, reacted: “I am pleased that the Court of Appeal has comprehensively supported the High Court’s judgment, which itself confirmed that the LSB followed the proper processes and that the work of the BSB, SRA and IPS in developing the QASA scheme was valid. We will continue our drive to raise standards in the legal sector. Advocates, given their vital role in the justice system, should expect to have the competence of their work assessed – and be seen to be assessed – in the interests of improving the quality of legal services.”

The SRA welcomed the Court of Appeal’s decision. SRA chief executive, Paul Philip, said: “We can now move ahead with implementation. QASA is key to providing us with a means of ensuring that standards of criminal advocacy are upheld.”

He continued: “We now need to consider the judgment carefully and identify next steps. We will issue information about a revised timetable for registration shortly.”

Director-general of the Bar Standards Board (BSB), Dr Vanessa Davies, said: “Our board will be reviewing the judgment and will carefully consider our next steps in relation to the scheme. We will be able to make further announcements about this sometime after our board have met on 23 October 2014.”

Davies continued: “QASA has always been about protecting the public from the minority of advocates who are not as good as they should be. In the words of the Master of the Rolls, ‘the whole point of an assessment scheme is to weed out incompetent practitioners.’ No profession in the public sphere is immune from quality assurance and it is paramount that victims, witnesses and defendants can expect the same standards of competence from all advocates working in the criminal courts.

“We acknowledge the concerns about the scheme that have been put forward during the JR but the court has made very clear that these concerns are unfounded and that the scheme has appropriate safeguards, not least a comprehensive review after two years of operation.

The BSB will of course act quickly to clarify its appeals policy taking full account of what is said in the judgment. “I invite the leaders of the profession to now work with the BSB and help us implement the scheme, in support of the administration of justice to which we are all committed,” she added.

Chair of the Legal Services Consumer Panel, Elisabeth Davies, said: “Over eight years have passed since a quality assurance scheme for criminal advocacy was first proposed and the public shouldn’t have to wait any longer for this important mechanism to be put in place. We urge the claimants to accept today’s decision to help bring about swift implementation of the scheme.”

A spokesperson for JAG said: “We welcome the decision of the Court of Appeal to dismiss the appeal of the outcome of the Judicial Review of the Quality Assurance Scheme for Advocates and we look forward to working constructively with the profession to implement the new scheme. We will be reviewing the judgment closely and will carefully consider each regulator’s next steps in terms of the scheme.”

Advocates respond

The response to the decision from criminal advocates to the judgment has been mixed.

Jonathan Black, a partner at BSB Solicitors and vice president of the London Criminal Courts Solicitors’ Association (LCCSA), who has also previously practised at the Bar, tweeted: “I hate over regulation but if it protects competent solicitor advocates from unnecessary criticism then perhaps it may help.”

Black later told SJ: “I would rather the appeal was successful as I share some of the criticism of the scheme; that the judiciary should judge an advocate’s ability and the challenges an advocate faces in performing while at the same time putting forward their client’s case. However, what we can take from it is that if there is going to be a scheme it may be an end to the Bar’s worries over solicitor advocates. The scheme would create a level playing field, so as long as solicitor advocates are assessed as evenly as their colleagues at the Bar. They will be assessed with parity.”

Black said he would be worried if barristers received more favourable or ‘sympathetic’ assessments from judges as most of the judiciary come from the Bar. “What we wouldn’t want to see is those assessors reject the competence of solicitor advocates simply because of the shape of their gown. The Court of Appeal ruling is a positive but my concern is that at the moment, solicitors are already heavily regulated, and this will be a further burden upon us all and our freedom and ability to get on with the job, which is representing our clients.”

While Benjamin Knight, a former solicitor-advocate and now barrister practising from Central Chambers, told SJ: “What people must understand about this 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. It seems to me that a continued refusal to participate in QASA is likely and that a return to ‘No Returns’ and other types of direct action may be the only thing left between truly independent advocates and oblivion.”

Knight added: “The problem may well be that the Bar, solicitors and legal executives are stuck in a battle for control between their regulators and the covetous LSB.”

Max Hardy, a barrister practising from 9 Bedford Row, told SJ: “In my view, nobody could sensibly oppose a scheme to ensure that only competent and capable advocates are appearing before the criminal courts whatever their professional background.

Many advocates are genuinely and legitimately concerned that their independence or, just as important, their perceived independence will be compromised by pursuing a judge’s approval concurrent with defending their client’s best interests. As anyone with experience of practice will know those aims do not always coincide.”

He continued: “A declaration that the scheme is lawful is not the same as declaring it a good scheme or the best possible scheme and it seems to me that the Inns of Court, repositories of hundreds of years of institutionalised advocacy excellence, could and should play a part in devising and administering a scheme which commands the confidence of all, and which would allay any fears about advocates’ self-interest coming into conflict with that of their clients.”

This article was first published in the Solicitors Journal on 10 October 2014 and is reproduced with kind permission.