By Rebecca Carter
Today saw the High Court reject the Bar’s challenge to the Quality Assurance Scheme for Advocacy (QASA) – a controversial mandatory assessment for all criminal advocates.
The judicial review against the Legal Services Board’s decision in July to approve QASA was brought in the name of four barristers and supported by the Criminal Bar Association with The Law Society named as an interested party.
With such great opposition demonstrated by the legal profession to QASA, today’s judgment has come as a not unexpected, but entirely disappointing blow.
In his comprehensive judgment, President of the Queen’s Bench Division Sir Brian Leveson rejected all of the challenges to the scheme.
“In our judgment, 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”, Sir Leveson said (para 135).
We asked criminal barristers who will be affected by QASA for their views on today’s dismissed application:
“The comprehensive rejection of the application for judicial review of the highly controversial QASA scheme is a devastating blow for the criminal bar.
A strong Divisional Court dismissed the fundamental premise of the Bar’s case, namely the potentially severe impact of QASA on the independence of both the Bar and the judiciary. The Court decided both that it was for the regulators rather than the Court to decide whether QASA were proportionate and that, in any event, the scheme was justified by the evidence before it of sub-standard advocacy.
The practicalities of QASA are controversial, and one can only be sorry that the Court dismissed the challenge to the system so comprehensively.”
“I imagine that any litigant who loses a case is unhappy, so it will come as no great surprise to say that I am disappointed with the outcome of the Judicial Review.
Having said that, it was always going to be difficult to persuade a Court that the exercise of discretion by the LSB was Wednesbury unreasonable (or even disproportionate), so the outcome is not a huge surprise.
It is to be hoped that the BSB (and other regulators) do not see this as a clean bill of health for QASA. The problems that have been identified before still remain. There is still no evidence as to what the problem with criminal advocacy is, how it is caused, how it can be fixed and, crucially, whether QASA will work. How is the scheme fair? How is it consistent with judicial independence and the independence of the advocate? Why has it not been piloted first? The best research was the Cardiff study which failed to inspire confidence in the scheme.
For those reasons, and many more, I support the CBA in their opposition to the scheme. This will be hugely damaging (as well as costly) to the most junior advocates and will not offer any protection to the public (on the contrary, it may well introduce a false sense of security).
I would urge the regulators to ask themselves why this issue has united all of the professionals that they regulate. Even with the current cuts to legal aid, there are some solicitors who are effectively supportive. The level of opposition from so many who have such dispirit (and conflicting) interests speaks volumes.
Hardy any advocate has signed up to the scheme and I expect that to remain the case. Advocates are right not to back down on this one. There will inevitably be a boycott and we will have to see what the BSB decide to do if it comes to the crunch.
Whilst QASA may be lawful, it does not mean that it is sensible or positive. The fact that it has “quality” in the title does not make it so. If QASA goes through, the public will be sold a lie, and whatever problems exist will be made worse.
This is not the end of the battle, just the end of the preliminary skirmishes.”
“Advocates’ views of QASA have been made clear to the BSB on many occasions; the large number of responses to the consultation, a refusal to attend “road shows” to facilitate registration, legal challenge to the validity of the scheme itself and the fact that only 10 advocates in the whole country have registered early shows the almost universal view that the scheme is flawed and unworkable.
Any suggestion that the Bar is against quality assurance, or that our complaint is that the bar has been set too high is completely mistaken. Individual advocates have always been instructed on the basis of their reputation for quality – the market place has been the ultimate form of quality assurance. Our objections are not that there should be no quality assurance, but that such a scheme should be fit for purpose and the standard should be higher than that presently suggested.
The current scheme sets the bar too low, allowing advocates to advise in cases where they have no experience in conducting such cases at trial, and allowing the use of accreditation centres, which create a two tier system of registration and offer no guarantees of quality.
A system that puts an advocate in a position where financial consequences may influence their acceptance of a brief, or in asking a judge who an advocate is appearing in front of to decide on their competence creates an inevitable conflict of interest that may prove damaging to the individual advocate and the criminal justice system itself.”
“The judgment, whilst disappointing, is not unexpected.
It is as least gratifying that the court recognised that there are flaws with the scheme as devised, and the advice they offer as to how to better administrate it ought to be taken on board.
Further, the court has clearly endorsed waiting for the Jeffrey report to be finalised; this is an approach I would endorse, and it may address some of the short comings of the scheme as presently designed.
QASA (if administered correctly) could put an end to substandard advocacy, but the real concern of the Bar is that the scheme as presently devised will not do that; having a “plea only” advocate means there is a risk house advocates will encourage guilty pleas to ensure they keep the fee. If an advocate is not able to advise on every aspect of the case, including tactics and prospects at trial, then they should not be advising on the brief.
QASA will add further pressure and expense to the Bar when it is already under significant strain owing to imminent government cuts.
I do not believe QASA will be the panacea the government hope for; it will merely add another level of bureaucracy to a system that works well as it is – let market forces decide who gets the work, not a government enforced shame that does not offer a level playing field.”
“I am extremely disappointed in the ruling. I hope that consideration is given to an appeal considering the importance of the issue affecting the Criminal Bar. I maintain that the independence of the Bar is compromised by judicial assessment of advocates in the course of trials.”
“I fail to understand why it is necessary to have an artificial categorisation of so called quality.
.. How on earth are a few Judicial assessments a sure test of ability any more than observing 2 or 3 Sheffield United matches in the course of a season to determine their successor quality.
This proposed scheme will not carry the support of the practitioners at the sharp end of criminal work and will further antagonise the demoralised Criminal Bar.” (In his response to the fourth QASA consultation and reproduced here with permission)
“I am not surprised with the decision. The challenge clearly has political overtones and frequently politics has a way of construing decision-making, so that arguments are recognised, but decisions stand firm. This was always going to be like trying to stop a careering juggernaut from crashing headlong into the barriers. Unfortunately, the mess that many informed participants foresee will be the outcome of QASA may now be proved right.
The fundamental point that I think many lawyers make remains good. Namely that, when being assessed in court, clients will be left with the unpalatable impression that their advocates have to pull their punches, in order to avoid upsetting their assessment. Bearing in mind not only the cab rank rule (for the Bar), but also the duty of counsel to promote fearlessly their client’s case, counsel themselves could be facing an obvious dilemma when being assessed.
There is also another point. For many barristers, appearing in court is not a frequent or regular occurrence, perhaps because their specialisms do not demand it. QASA has the potential to capture anyone for assessment. Currently, specialist areas of the Bar are excluded, but who is to say that will remain? It may prove difficult to have the necessary number of appearances, in order to be assessed properly, if the advocate is not frequently in front of an appropriate tribunal.
Unfortunately, these regulations come across as more bureaucratic burdens on a profession that is already tied up with administrative burdens dressed up as practice requirements. The Bar and legal profession generally managed to cope very well for many years without the structures in place that now pervade every part of a practitioner’s life. There is a feeling that hurdles are put in place because people have become focused on systems, rather than solutions and results.
Unnecessary regulation has become the journey of the professional. The ever growing altar of bureaucratic control is where professional time is sacrificed. Instead of problem resolution being the destination of professional involvement, the high watermark of what lawyers actually do ebbs around administrative requirements, such as QASA, that many lawyers see fraught with problems.
The law has become about rules and not about results. That is a great pity.”
It remains to be seen how QASA will work in practice, particularly in the face of such fierce opposition. What is certain is that such opposition is unlikely to subside any time soon.