The High Court heard this morning that the ‘unlawful’ Quality Assurance Scheme for Advocates (QASA) undermines fundamental principles of independence.

The case challenges the Legal Services Board’s decision in July to approve the application made by the Bar Council and the Bar Standards Board to introduce QASA – a mandatory assessment for all publicly funded criminal advocates.

It is brought in the name of four barristers: Katherine Lumsdon; Rufus Taylor; David Howker QC and Christopher Hewertson and is supported by the Criminal Bar Association.

The claimants argue that the scheme is inconsistent with independent advocacy. They say the use of judicial evaluation during live criminal trials to assess advocates creates a ‘clear and irreconcilable conflict of interest’ for barristers and other advocates, threatening their independence and the interests of consumers.

They claim it is inconsistent with judicial independence and undermines the rule of law by imposing on judges the dual roles of judge and assessor of advocates. In their assessor role, judges are exposed to the possibility of civil suit for negligent misstatement, defamation, malicious falsehood and other torts, they claim. 

It is argued that QASA breaches Article 6 of the European Convention on Human Rights and EU law by providing inadequate appeal rights. It is also asserted that the scheme does not comply with the Provision of Services Regulations 2009.

The claimants contend there is no evidenced need for QASA and that it is a disproportionate way to achieve its objective.

They also argue that the LSB’s decision to approve QASA is flawed because its role in the design and development of it exceeded its statutory powers.

Opening the case for the claimants, Dinah Rose QC said the case is ‘in danger of getting out of control’. She said 109 authorities had been cited, and criticised the defendants and the BSB for putting in issue a wide range of complex matters that are ‘wholly unmeritorious’ but which take a long time to unravel.

A four-strong team from Baker & McKenzie – Joanna Ludlam, Victoria Young, Carinne Maisel and Sarah King – are acting pro bono for the criminal bar. Counsel for the bar is also acting pro bono; they are Blackstone Chambers’ Dinah Rose QC; Tom de la Mare QC and Jana Sadler-Forster; Mark Trafford from 23 Essex Street and Charlotte Kilroy from Doughty Street Chambers.

The Legal Services Board is represented by Nigel Griffin QC from 11 KBW and Duncan Sinclair from 39 Essex Street, instructed by Field Fisher Waterhouse.

Tim Dutton QC and Tetyana Nesterchuck from Fountain Court Chambers represent the BSB.

Chloe Carpenter, also from Fountain Court Chambers, represents the Solicitors Regulation Authority.

Helen Mountfield QC and Chris Butler from Matrix Chambers, instructed by in-house lawyers, represent the Law Society, which intervened as an interested party.

The case is being heard by Sir Brian Leveson, Mr Justice Bean and Mr Justice Cranston. It is listed for two days and judgment is expected in December.