The High Court has dismissed the bar’s challenge to the controversial Quality Assurance Scheme for Advocates (QASA).

In a lengthy judgment published today, the president of the Queen’s Bench Division Sir Brian Leveson (pictured) rejected all of the challenges to the scheme advanced by the claimants.

He ruled that the scheme is lawful, does not contravene European law and falls within the legitimate exercise of the powers of the Legal Services Board and the three frontline regulators that designed it – the Solicitors Regulation Authority, Bar Standards Board and ILEX Professional Standards.

However the court accepted that concerns raised by the claimants about the requirement for advocates to be assessed by trial judges were ‘entirely genuine’.

The LSB and Legal Services Consumer Panel welcomed the ruling. 

The court made four suggestions to improve the scheme, but said adoption was up to the regulators. These were:

  • When an advocate to be assessed receives a brief at the last moment, the court suggested that the assessment form require the advocate to identify when they were first instructed and whether advice on evidence had been provided.
  • Judges should be permitted to decline to complete the form if they believe that because of the circumstances an assessment would not be fair.
  • In the event of a third judicial assessment becoming necessary, the High Court said it should not be conducted by either of the judges who conducted the first two assessments.
  • 'Every step should be taken’ to address ‘areas of ambiguity’ in the scheme’s written material.

Leveson said: ‘We recognise that those who fulfil the vital public service of criminal advocacy feel under very considerable pressure at the present time.'

He noted that advocates ‘are facing real concerns regarding criminal legal aid based upon the levels of remuneration that the Ministry of Justice is proposing across the board, and in particular, in relation to the most challenging cases’.

Leveson said the review being conducted into the provision of independent criminal advocacy, due in March 2014, would ‘impact directly’ on the issued that have been considered by the court.

In light of the judgment, Leveson said there will be an ‘extended’ time for representations to be made as to the consequential effects of the judgment.

The case challenged the LSB’s decision in July to approve the application made by the Bar Council and the BSB to introduce QASA – a mandatory assessment for all publicly funded criminal advocates. 

It was brought in the name of four barristers: Katherine Lumsdon, Rufus Taylor, David Howker QC and Christopher Hewertson. It is supported by the Criminal Bar Association. The Law Society intervened as an interested party.

At the hearing at the end of November, the claimants had argued that the scheme is incompatible with the independence of the judiciary, threatens judicial independence, is contrary to EU law and is disproportionate.

They also argued that the LSB’s decision to approve the scheme should be quashed on the basis of its role in designing it.

Reacting to this morning’s decision, Elisabeth Davies, chair of the LSCP, said: ‘This judgment is excellent news for consumers. We encourage the parties to accept the judgment so that implementation of QASA can proceed swiftly and without further distractions.’

David Edmonds, chairman of the LSB, said the judgment ‘vindicated’ the integrity of the board's process. He said: ’Over five years, the LSB has sought to raise standards. Those who need access to justice have a right to expect that regulators and advocates alike, acting in the public rather than self-interest, will constantly seek to assess and improve the quality of legal services.'

spokesman for the Joint Advocacy Group said: 'We are pleased that the judgment in the judicial review of the Quality Assurance Scheme for Advocates enables us to continue with the scheme, which is designed to protect members of the public who require criminal advocacy.'  

The three frontline regulators will 'study the judgment carefully and review aspects of the scheme in line with the judgment where appropriate or necessary'. 

Welcoming the outcome, Vanessa Davies, director of the Bar Standards Board, said the board will give careful consideration to the judgment and the suggestions made by the court and make further announcements 'as soon as possible'.

The Law Society said that it had intervened because it felt that there were some key concerns about the scheme which it was right that the court should consider. 'We continue to have reservations about whether QASA is an appropriate or proportionate scheme to assess advocacy and we shall monitor it closely,' a spokeswoman said. 'Our efforts now will be to support solicitor advocates who will be required to seek accreditation through the scheme at a time of great uncertainty for all involved in the criminal justice system.'

The judgment is available here.