Master of the rolls Lord Dyson has dismissed an appeal by barristers against the decision to proceed with the Quality Assurance Scheme for Advocates (QASA).
Dyson said the accreditation scheme does not undermine the independence of the advocate or the judiciary and interferes neither with fundamental rights nor constitutional principles.
The bar’s judicial review had concentrated on whether regulators had properly understood and fulfilled their statutory duties in designing the scheme, and questioned whether it was lawful and proportionate.
But Dyson, while noting the scheme was ‘controversial’ and divided opinions, ruled it was lawful and can proceed. The decision was immediately welcomed by the oversight regulator the Legal Services Board, the defendant in the challenge.
Dyson said there was ‘no doubt’ that the LSB was aware of the issue of exposing advocates to unacceptable pressures when it took its decision. It was also ‘clear’ that the LSB would not have approved a scheme which it considered to be disproportionate.
The judgment also noted the Bar Standards Board’s own assessment that any perceived risk to the independence of barristers was ‘merely speculative rather than real’.
Dyson said: ‘The common law does not insist that all possible pressures on the advocate to act improperly must be eliminated. It has for many years been the case that advocates may be affected by a judge’s opinion of their performance.’
In the hearing in July, Dinah Rose QC, of Blackstone Chambers, had argued that QASA was unlawful because it would expose advocates to pressures which would deter them from representing their clients effectively.
She also put forward that the LSB failed to properly consider these effects, and had not considered whether QASA would give rise to a perceived threat to the advocate’s independence.
In his witness statement, LSB chief executive Chris Kenny said it was necessary to show consistency so that two different routes to qualifying as an advocate could lead to identical standards.
‘Inconsistency could undermine public confidence in the administration of justice or the rule of law,’ he added.
Dyson said he could interfere with the LSB’s decision only if it was unlawful. He added that those who oppose the scheme ‘can at least take some comfort' from the fact that the regulators intend to review it after two years.
The LSB had approved the joint scheme put forward by the Solicitors Regulation Authority, Bar Standards Board and ILEX Professional Standards.
LSB chairman Sir Mike Pitt said the ruling confirmed it had followed proper processes and that the scheme is valid.
‘Advocates, given their vital role in the justice system, should expect to have the competence of their work assessed and be seen to be assessed in the interests of improving the quality of legal services.’
Elisabeth Davies, chair of the Legal Services Consumer Panel, urged the claimants to accept the decision to allow swift implementation of the scheme.
‘Over eight years have passed since a quality assurance scheme for criminal advocacy was first proposed and the public shouldn’t have to wait any longer for this important mechanism to be put in place.’