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Supreme Court dismisses QASA appeal to protect the public

Disappointed criminal barristers make new law but ultimately lose out in decision over quality scheme for advocacy

24 June 2015

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The Supreme Court has unanimously dismissed an appeal from criminal law barristers who sought a judicial review of the Legal Services Board's (LSB) decision to give effect to the Quality Assurance Scheme for Advocates (QASA).

The ruling supports the LSB's decision to approve a joint application by the Bar Standards Board (BSB), ILEX Professional Standards (IPS), and the Solicitors Regulation Authority (SRA) to implement the controversial quality scheme of criminal advocacy.

A Joint Advocacy Group (JAG) set up by the regulators announced the scheme in December 2012, which was approved by the LSB board in July 2013.

A claim for judicial review of QASA was launched by individual criminal barristers in September 2013 with support of the Criminal Bar Association (CBA).

The High Court ruled in favour of the LSB in January 2014. However, barristers applied to the Court of Appeal which, after initially refusing permission on the papers, also ruled in favour of the LSB and confirmed the High Court decision.

The claimants sought permission to appeal to the Supreme Court on whether the LSB decision was contrary to EU regulation 14 of the Provision of Service Regulations 2009.

A lengthy judgment from Lords Reed and Toulson - with Lords Neuberger and Clarke and Lady Hale in agreement - held that the Court of Appeal had been wrong in how it had applied the EU's proportionality principle.

The principle of proportionality requires that EU law does not go beyond what is necessary to achieve the objectives of EU treaties. There has been confusion about how the principle applies in practice, and whether the court should be assessing the question for itself, or deferring to decision makers' judgment.

However, the Supreme Court agreed with the LSB's argument that a self-certifying scheme by advocates held unacceptably high risk to the public and that QASA was the only way to ensure 'the desired level of protection'. The judgment will now allow the legal regulators to press ahead with scheme.

Barristers' disappointment

The CBA said it was 'deeply disappointed' by the judgment and retained the view that the scheme was a 'bad one'.

The CBA added that it wanted 'the best and most extensive training and practice given to the all those who practice in the higher courts' and were confident that those who have had completed barrister specific vocational training were 'well set' for providing high quality advocacy to the public.

Joanna Ludlam, a partner at Baker & McKenzie who acted pro bono for the CBA said that while the legal team were disappointed with the outcome, the judgment shows that the Supreme Court justices found in favour of its submissions on the law.

'This will force the regulators to think seriously about future developments of QASA and will help achieve a scheme which better serves the interests of the public and the legal profession. This case is also ground-breaking in that has set a new legal precedent and will henceforth be a leading authority on the application of the principle of proportionality of EU Law.'

Regulator response

The LSB's chief executive, Richard Moriarty, said he was pleased the Supreme Court had recognised the super regulator had acted lawfully in granting the QASA application.

'Throughout this process, there has been consensus about how important competent advocacy is in supporting the rule of law,' he said. 'My firm expectation, now that we have clarity on legality, is that the regulators in JAG will proceed with implementing the scheme to assure the public of the competence of criminal advocates.'

Director general of the BSB, Dr Vanessa Davies, said: 'Clearly we need to look carefully at the detail in today's judgment, but the objective of providing a high level of public protection through a precautionary scheme has long been the underlying principle behind QASA. The Supreme Court has recognised this.

She added that given the length of time that had passed since QASA was approved by the LSB, the Bar regulator would need to consider the scheme's implementation and likely timescale.

Iain Miller, a partner at Bevan Brittan who represented the BSB, said: 'We are very pleased at today’s outcome. The notion of proportionality is central to EU law and this judgement underlines that fact. This now brings to an end a case that has raised many interesting and complex issues.  

'The Supreme Court did not consider that it was necessary to reach a conclusion on whether QASA is an authorisation scheme falling within the scope of the EU services directive, although it observed that the answer to that question did not appear straightforward.'

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