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.”