The Supreme Court today dismissed an appeal by criminal barristers against the decision to proceed with the Quality Assurance Scheme for Advocates (QASA).
Giving a joint judgment, Lord Reed and Lord Toulson ruled that the accreditation scheme was the only way of providing ‘the desired level of protection’, meaning the scheme was proportionate to the aims pursued.
The judgment now paves the way for the scheme to be introduced, more than two years after it was first proposed.
The Bar Standards Board, Solicitors Regulation Authority and ILEX Professional Standards proposed QASA in May 2013. Under the scheme criminal advocates wishing to exercise rights of audience at a higher level would be obliged to apply for accreditation.
This would be dependent on assessments carried out by trial judges during trials.
The Court of Appeal threw out a challenge to the scheme last October saying it did not undermine the independence of the advocate or the judiciary and did not interfere with fundamental rights or constitutional principles.
The case then went to the Supreme Court, where the judicial review centred on whether QASA took into account regulations around authorisation schemes, which specified that authorities should not implement authorisation schemes unless the objective cannot be attained by a less restrictive measure.
Criminal barristers, led by Katherine Jane Lumsdon, argued that an alternative scheme proposed by the Bar Standards Board, which proposed that judicial assessments would take place only when concerns were raised about a particular advocate, should instead be adopted.
But the Legal Services Board noted the potentially serious consequences of poor advocacy, and said the scheme was justified in light of the gravity of the risk.
The Supreme Court agreed with the LSB that the level of risk presented by a self-certifying scheme was unacceptable. Lord Neuberger, Lady Hale and Lord Clarke agreed with the joint judgment.
Richard Moriarty, chief executive of the Legal Services Board, said: 'I am pleased that the Supreme Court has agreed with the Court of Appeal’s judgment that QASA is proportionate as a scheme, and that the LSB acted lawfully in granting the application made to it.'
The director general of the BSB, Dr Vanessa Davies, also praised the judgment for confirming that QASA was lawful and proportionate. She added: ‘Given the length of time that has passed since the scheme was approved by the LSB, we need to consider the scheme’s implementation and likely timescales involved.’
But the Criminal Bar Association said it was ‘deeply disappointed’ by the ruling, saying that those best trained in criminal advocacy will now have to go through a system to expose a lack of quality that was ‘found not to exist in any significant degree at the bar’.