QASA given green light by High Court as JR fails

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20 January 2014

High Court: backed LSB’s right to approve QASA

A judicial review of the Legal Services Board’s approval of the Quality Assurance Scheme for Advocacy (QASA) has today been comprehensively rejected by the High Court.

The judicial review against the decision of the Legal Services Board (LSB) to approve QASA, brought by four barristers with the support of the Criminal Bar Association (CBA), argued that the scheme “offends fundamental issues of justice”.

Sir Brian Leveson, president of the Queen’s Bench Division, sitting with Mr Justice Bean and Mr Justice Cranston, concluded:”The scheme is lawful, does not contravene European law and falls well within the legitimate exercise of the powers of the LSB and the three regulators that submitted it to the LSB for approval.”

The claimants made multiple arguments against the scheme, with the impact on the independence of both barristers and judges central to them.

But the High Court was not impressed. It started off by finding that the pressure of legal aid cuts on barristers meant quality assurance could not be left to market forces. “Our assessment is that there is a low risk that judicial independence would be challenged by the scheme arrangements.”

The judges continued: “It could be argued that the scheme will be more robust and transparent than what happens under current arrangements, where judges may provide feedback informally on the performance of advocates via the circuits to heads of chambers rather than via the approved regulator.”

They also said: “There is no evidence before us, as far as these claimants are concerned, of any adverse impact of the introduction or operation of the scheme.” The court said it is “a big leap from recognising that judges are occasionally unfair to saying that the scheme is a threat, or could reasonably be perceived by the client as being a threat, to the independence of the advocate”.

The judges said it was for the regulators, rather than the court, to decide if QASA was proportionate, but if they were wrong, “in our view the objective of competent advocacy is important and the scheme is justified by the evidence of sub-standard advocacy.”

However, they made suggestions for improving QASA, including the comment that during the judgment they had “identified some areas of ambiguity in the written material” of QASA that needed to be clarified.

The LSB welcomed the decision. Its chairman, David Edmonds, said: “The High Court’s judgment has vindicated the integrity of the LSB’s process and the detailed work put in beforehand by the BSB, SRA and IPS.”

A spokesman for the Joint Advocacy Group, representing the three regulators behind QASA – the Bar Standards Board, Solicitors Regulation Authority and ILEX Professional Standards – said: ““We are pleased that the judgment… enables us to continue with the Scheme, which is designed to protect members of the public who require criminal advocacy.”

Elisabeth Davies, chair of the Legal Services Consumer Panel, said: “This judgment is excellent news for consumers. We encourage the parties to accept the judgment so that implementation of QASA can proceed swiftly and without further distractions.”

The three regulators, as well as the Law Society, were all interested parties.

In September, Mr Justice Ouseley capped the claimants’ costs exposure at £150,000, 10 times greater than that the claimants had sought, a figure upheld on appeal.

The cap only applies to costs ordered in favour of either of the LSB and BSB, the other two regulators having pledged not to seek costs.

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