QASA 'justified by sub-standard advocacy', Leveson says

The Quality Assurance Scheme for Advocates (QASA) is "justified by the evidence of sub-standard advocacy", the High Court has decided.

In a ruling handed down this morning, Sir Brian Leveson, president of the Queen's Bench Division, said there were "obvious risks posed both to individuals and to the criminal justice system", and surveys in the past seven years had "produced significant evidence of concerns about advocacy standards from a range of sources, including the views of the judiciary".

Ruling in R (on the application of Lumsdon and others) v The Legal Services Board EWHC 28(Admin), Sir Brian went on: "It was only to be expected that in the development of QASA scheme different, indeed sometimes radically different, views were taken about its desirability and design by the BSB, the SRA and other regulators, by advocates and their representative bodies, and by judges.

"None of that goes to the irrationality of the scheme as it relates to the objective of tackling incompetent advocacy. The ORC International report highlighted that matters such as public funding limits could make matters worse.

"As we explained earlier in the judgment, after the final consultation in 2012 the BSB considered whether a less intrusive scheme was still possible, focusing on low performers, rather than all barristers, but ultimately it decided that the QASA scheme was the best way forward.

"We also note in this regard that the cost to advocates of participating in QASA will be in relative terms very small, that judges will have to be trained before conducting assessments and that the scheme will be reviewed within a short period. "It may well be that some advocates will not make the grade under the scheme and, as we have explained, will be confined to a lower level of work. But we cannot regard the balance struck in the light of all these factors as being in any way disproportionate."

Sir Brian added that the court recognised the criminal advocates were "under very considerable pressure at the present time".

He referred to "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".

The High Court suggested some minor amendments to the scheme, but dismissed the application, brought by four barristers, for judicial review. Mr Justice Cranston and Mr Justice Bean contributed to the judgment.

The fate of QASA now depends on whether the barrister boycott holds firm. All circuits have voted almost unanimously for the boycott, particularly the Midlands and Western circuits, which are to register first.

The Criminal Law Solicitors' Association also called on solicitors to boycott the scheme last autumn, and SACHA (the Solicitors' Association of Higher Court Advocates) said it would welcome the scheme's collapse.

Bill Waddington, chairman of the CLSA, described the scheme as "just another piece of unnecessary regulatory nonsense" and said the association's arguments were very similar to those put forward by the Bar.

The LSB's consumer panel described today's ruling as "excellent news for consumers" and said parties should "accept the judgment so that implementation of QASA can proceed swiftly and without further distractions".

The Joint Advocacy Group, made up of the Bar Standards Board, Solicitors Regulation Authority and ILEX Professional Standards, said it was pleased that QASA could now go ahead and would review aspects of the scheme in line with the judgment.