Supreme Court grants appeal to criminal barristers over QASA

The Supreme Court has granted permission to appeal against the introduction of the contentious Quality Assurance Scheme for Advocates (QASA).

The court's decision is the latest in a long-running saga between advocates and the various legal regulators.

In May 2013, the BSB, SRA and ILEX Professional Standards proposed the implementation of the rating system, known as QASA, whereby criminal advocates wishing to exercise rights of audience at a higher level would be obliged to apply for accreditation.

Certification of such rights of audience would be dependent on assessments carried out by trial judges during trials conducted by the advocate. If accreditation was refused, an advocate would not be permitted to practise at a higher level.

Criminal barristers had argued that the scheme was unlawful and undermined fundamental principles of independence. Further, critics of QASA had argued that advocates could be reluctant to appear in criminal cases because of the pressures of being scored on performance.

In October, an appeal against a High Court decision to dismiss a judicial review of QASA was rejected by the Court of Appeal. The court found the scheme was lawful, did not interfere with the independence of the advocate or judiciary and that the LSB's decision to approve it was neither disproportionate nor unreasonable.

However, in granting permission to appeal, the Supreme Court said it was prepared to hear argument as to the correctness of the assumptions made by the Court of Appeal that the Services Directive is applicable and that QASA is an "authorisation scheme". It expects to hear argument as to the proper disposal of the appeal if the Court of Appeal's approach to its role was too narrow.

Commenting on the court's decision, Dr Vanessa Davies, the director general of the BSB, said: "The Supreme Court has allowed the claimants in the judicial review of the Quality Assurance Scheme for Advocates (QASA) to appeal against one aspect of the judgment of the CoA in relation to the Provision of Services Regulations.

"We are pleased to note that the Supreme Court has refused the claimants permission to appeal on all other grounds - including whether the scheme compromised the independence of the advocate - on the basis that they had 'no real prospect of success'."

Saara Idelbi, a barrister at 7BR said: “It is disappointing that the Supreme Court considered that the grounds concerning the independence of the advocate had no real prospect of success.  Whilst it is important not to attribute too much to that which has not been said, the refusal of permission reflects an agreement that the judiciary has always been an active element of the progression of lawyers. As such, the pressure of judicial assessment is insufficient to infringe the independence of advocates. 

"Given the fervent debates on how practically the marking process may potentially infringe the independence on advocates including comments from some of the judiciary itself, it is interesting that the ground did not give rise to a real prospect of success. Perhaps, the real answer to this question will crystallise by experience, in the same way the answers to legal aid cuts have done.”

Image copyright of Mary van der Luit Photography

John van der Luit-Drummond is legal reporter for Solicitors Journal