QASA ruling: barristers ‘should not only be independent but competent’

The Court of Appeal has unanimously rejected the appeal of criminal barristers arguing that QASA (the Quality Assurance Scheme for Advocates) was unlawful. It was argued that the scheme compromised the independence of advocates and that the decision on the part of the Legal Services Board (LSB) to approve it was unlawful. All grounds were quashed and implementation isnow due to take place some eight years after the original proposals were tabled.

The proceedings concerned the lawfulness of the LSB’s decision to approve the joint application for QASA, as made by the Joint Advocacy Group (comprising the Solicitors Regulation Authority, Bar Standards Board and ILEX Professional Standards). QASA was first approved in January 2012, with the High Court ruling in favour of the scheme at an earlier judicial review hearing in January 2014. Permission to appeal was refused at first instance, but this was challenged and leave to appeal granted on 9 May 2014.

wigs B&WThe necessity for QASA was borne out of ‘(i)…strong evidence of poor quality advocacy in the criminals courts and; (ii) there was a general (but by no means universal) acceptance of the need for some form of quality assurance scheme policed by the judges’. The LSB held the view that poor advocacy ‘risks having a detrimental impact on victims, witnesses, the accused and on public confidence’.

Those appealing argued that such a scheme would undermine the independence on which the Bar is based – this ground was dismissed and Master of the Rolls Lord Dyson stated: ‘It is in the public interest that criminal advocates should not only be independent, but also they should be competent.’

The Bar argued that QASA would inhibit their ability to represent their clients properly by exposing them to additional pressures. This was also dismissed, with Lord Dyson making clear that ‘the common law does not insist that all possible pressures on the advocate to act improperly must be eliminated’. Judicial scrutiny was part and parcel of life as an advocate, noted Dyson.

The other argument was that the decision of the LSB to approve QASA was unlawful and disproportionate. Lord Dyson argued that a consideration of the merits of the scheme was ‘no part of the court’s function’, and that it may ‘only interfere with the decision that it is unlawful’.

Lord Dyson concluded that the ‘controversial’ and divisive nature of the scheme did not render it disproportionate to the outlined objective. The scheme is due to be reviewed two years after its implementation.Sir Mike Pitt, Chairman of the LSB declaring himself ‘pleased’ with the ‘comprehensive support’ of the Court of Appeal.

 ‘We will continue our drive to raise the standards in the legal sector. Advocates, given their vital role in the justice system should expect to have the competence of their work assessed…in the interests of improving the quality of legal services.’
Sir Michael Pitt

The Bar Standards Board (BSB) was also pleased about the verdict. Director-general , Dr Vanessa Davies stated that the aim of QASA was a noble one: ‘QASA has always been about protecting the public from the minority of advocates who are not as good as they should be…to weed out incompetent practitioners.’ She was also satisfied that the strength of the safeguards were proven adequate by the Court of Appeal, and that the concerns raised were ‘unfounded’. She concluded by urging those who did appeal to pledge their support to the shared commitment of ‘the administration of justice’.

QASA will now be implemented, and should be done so swiftly, according to Elisabeth Davies, chair of the Legal Services Consumer Panel). QASA was designed for the public, who ‘shouldn’t have to wait any longer for this important scheme to be put in place’.

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