*/
The Court of Appeal has held that the Quality Assurance Scheme for Advocates (QASA) is lawful. Rejecting each of the grounds put forward by the four criminal barrister appellants, it accepted that although the scheme is “controversial”, “it is no part of the court’s function to express any view about the merits of the scheme”.
Instead the Legal Services Board is “entitled to a substantial margin of discretion in relation to the question whether the Decision [to approve the scheme] was proportionate”.
The judgment of the Master of the Rolls Lord Dyson said that: “A decision does not become disproportionate merely because some other measure could have been adopted.” The four appellants, who were not suing in a representative capacity, had indicated that they did not object to judicial evaluation by another method. Dealing with the various grounds, the court described as “aspirational” the statutory regulatory objectives of the LSB. Whether or not these aspirations were achieved by QASA was a matter for the LSB and not for the court. The independence of the advocate – which is not an absolute principle in any event – was not the only relevant consideration; “competence is no less important than independence”.
Neither, the judgment held, was judicial independence compromised by the scheme which requires judges to assess advocates in trials. That has no impact on the conduct of proceedings. “No fair-minded informed observer would consider that there was a real risk that (i) the possibility of the judge being sued or (ii) the fact that the assessment would be communicated to the advocate would have any impact on the way in which the judge conducted the proceedings.” Having dismissed the arguments that the independence of the advocate and of the judiciary would be undermined, it was held there is no “interference with fundamental rights or constitutional principles”.
In only one aspect did the court express a concern: the provision which allowed an appeal on grounds of “unreasonableness or procedural error” was “not clear”. This should be amended to spell out the meaning of “unreasonableness” here and the court was “in no doubt that the Bar Standards Board would now clarify its Appeal Policy”.
On the day the judgment was handed down, the Bar Standards Board stated that it will “act quickly to clarify its appeal policy taking full account of what is said in the judgment”. Director-General of the BSB, Dr Vanessa Davies, further stated that: “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.”
The Criminal Bar Association, which supported the claimants in their action, said its “reservations about the opaque appeals process appear to be well founded” but “the CBA accepts that the Court of Appeal has ruled the scheme to be lawful. We await advice as to any appeal that may be pursued. We note that the court described the case as ‘not an ordinary piece of litigation’. We will be consulting our members as to what action should be taken in the light of the decision.”
CBA Chairman Tony Cross QC thanked Baker & McKenzie and counsel Dinah Rose QC, Tom de la Mare QC, Mark Trafford, Tom Richards and Jana Sadler-Forster for their pro bono representation: “They are a shining example of the principles of independent and fearless advocacy and we are forever in their debt.”
The judgment of the Master of the Rolls Lord Dyson said that: “A decision does not become disproportionate merely because some other measure could have been adopted.” The four appellants, who were not suing in a representative capacity, had indicated that they did not object to judicial evaluation by another method. Dealing with the various grounds, the court described as “aspirational” the statutory regulatory objectives of the LSB. Whether or not these aspirations were achieved by QASA was a matter for the LSB and not for the court. The independence of the advocate – which is not an absolute principle in any event – was not the only relevant consideration; “competence is no less important than independence”.
Neither, the judgment held, was judicial independence compromised by the scheme which requires judges to assess advocates in trials. That has no impact on the conduct of proceedings. “No fair-minded informed observer would consider that there was a real risk that (i) the possibility of the judge being sued or (ii) the fact that the assessment would be communicated to the advocate would have any impact on the way in which the judge conducted the proceedings.” Having dismissed the arguments that the independence of the advocate and of the judiciary would be undermined, it was held there is no “interference with fundamental rights or constitutional principles”.
In only one aspect did the court express a concern: the provision which allowed an appeal on grounds of “unreasonableness or procedural error” was “not clear”. This should be amended to spell out the meaning of “unreasonableness” here and the court was “in no doubt that the Bar Standards Board would now clarify its Appeal Policy”.
On the day the judgment was handed down, the Bar Standards Board stated that it will “act quickly to clarify its appeal policy taking full account of what is said in the judgment”. Director-General of the BSB, Dr Vanessa Davies, further stated that: “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.”
The Criminal Bar Association, which supported the claimants in their action, said its “reservations about the opaque appeals process appear to be well founded” but “the CBA accepts that the Court of Appeal has ruled the scheme to be lawful. We await advice as to any appeal that may be pursued. We note that the court described the case as ‘not an ordinary piece of litigation’. We will be consulting our members as to what action should be taken in the light of the decision.”
CBA Chairman Tony Cross QC thanked Baker & McKenzie and counsel Dinah Rose QC, Tom de la Mare QC, Mark Trafford, Tom Richards and Jana Sadler-Forster for their pro bono representation: “They are a shining example of the principles of independent and fearless advocacy and we are forever in their debt.”
The Court of Appeal has held that the Quality Assurance Scheme for Advocates (QASA) is lawful. Rejecting each of the grounds put forward by the four criminal barrister appellants, it accepted that although the scheme is “controversial”, “it is no part of the court’s function to express any view about the merits of the scheme”.
Instead the Legal Services Board is “entitled to a substantial margin of discretion in relation to the question whether the Decision [to approve the scheme] was proportionate”.
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
Westgate Wealth Management Ltd is a Partner Practice of FTSE 100 company St. James’s Place – one of the top UK Wealth Management firms. We offer a holistic service of distinct quality, integrity, and excellence with the aim to build a professional and valuable relationship with our clients, helping to provide them with security now, prosperity in the future and the highest standard of service in all of our dealings.
Is now the time to review your financial position, having reached a career milestone? asks Louise Crush
If you were to host a dinner party with 10 guests, and you asked them to explain what financial planning is and how it differs to financial advice, you’d receive 10 different answers. The variety of answers highlights the ongoing need to clarify and promote the value of financial planning.
Most of us like to think we would risk our career in order to meet our ethical obligations, so why have so many lawyers failed to hold the line? asks Flora Page
If your current practice environment is bringing you down, seek a new one. However daunting the change, it will be worth it, says Anon Barrister
Creating advocacy opportunities for juniors is now the expectation but not always easy to put into effect. Tom Mitcheson KC distils developing best practice from the Patents Court initiative already bearing fruit
National courts are now running the bulk of the world’s war crimes cases and corporate prosecutions are part of this growing trend, reports Chris Stephen
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession