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Protests and resignations but the High Court says QASA is lawful

Following months of protests from the criminal Bar including the resignation of a number of barristers from the Bar Standards Board’s (BSB’s) disciplinary panel, the High Court today (20 January) dismissed a formal judicial challenge of the controversial Quality Assurance Scheme for Advocates, ruling that the scheme is lawful.

The court found that the scheme, under which barristers may only accept trials on a par with their assessed and graded advocacy abilities, does not constitute a breach of European law and falls within the legitimate exercise of the powers of the Legal Services Board (LSB) and the three regulatory bodies that submitted it to the LSB for approval.

The lengthy judgment handed down by the president of the Queen’s Bench Division Sir Brian Leveson, rejected each of the challenges to the QASA scheme advanced by the claimants – barristers Katherine Lumsdon, Rufus Taylor, David Howker QC and Christopher Hewertson.

The Criminal Bar Association, which advanced the judicial review, was represented by Baker & McKenzie disputes partner Joanna Ludlam, who instructed Blackstone Chambers’ Dinah Rose QC and Tom de la Mare QC.

11KBW’s Nigel Giffin QC and 39 Essex Street’s Duncan Sinclair represented the LSB, instructed by Field Fisher Waterhouse’s senior partner Matthew Lohn. The BSB, the Solicitors Regulation Authority (SRA), and the Law Society all appeared as interested parties. The Institute of Legal Executives was also listed as an interested party but did not appear or have representation.

While rejecting the review, the court recognised ‘that those who fulfil the vital public service of criminal advocacy feel under very considerable pressure at the present time… the professions 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.’

The judgment added: ‘QASA goes to the heart of the practice development of criminal advocates and every step should be taken to ensure that the scheme is completely clear to all called upon to comply with it.’

Today’s result follows mounting tensions surrounding the new scheme, as evidenced by a number of barristers that resigned from the Bar Standards Board (BSB) disciplinary prosecution panel in September 2013 in protest at the launch of the grading scheme.

Responding to the judgment, director of the BSB, Dr Vanessa Davies, said: ‘We appreciate that some members of the profession will be disappointed by the outcome of the [judicial review] but we look forward to working constructively with the profession to implement the new scheme.

‘We hope advocates will respect the court’s decision and understand that, as a regulator with a duty to safeguard clients, it’s only right that the Bar Standards Board acts to stop those advocates who fall short. We will do our best to support barristers in due course through registration and accreditation. We remain confident that the majority of barristers will complete the process without any difficulty.’