The long running saga concerning attempts by legal regulators to impose a quality assurance scheme on criminal advocates in the face of widespread and determined opposition from barristers and solicitors added another chapter today when the High Court rejected a challenge to the scheme by way of judicial review.

In a judgment handed down yesterday, Sir Brian Leveson, President of the Queen’s Bench Division, sitting with Mr Justice Bean and Mr Justice Cranston in the Queen’s Bench Divisional Court, refused the claim brought by four independent barristers who had sought to challenge the legality of the decision, made by the Legal Services Board on 26 July 2013, to approve the Quality Assurance Scheme for Advocates (QASA).

The claim was brought by Katherine Jane Lumdson, Rufus Taylor, David Howker QC and Christopher Hewertson against the LSB, with four interested parties also involved: The General Council of the Bar (acting by the Bar Standards Board (BSB)), the Solicitors Regulation Authority (SRA), Ilex Professional Standards, and the Law Society.

For background on QASA, see these earlier posts on this blog:

1. Questions about QASA
2. QASA in practice: doing your level best
3. QASA: hit and myth

Read a critical appreciation of the QASA Handbook here.

Notable features of the QASA scheme are:

• It applies to all advocates whether barristers, solicitors or legal executives who wish to practice in the criminal courts
• It divides criminal cases into four levels of difficulty ranging from the most basic magistrates’ court cases at level 1 up to complex murder, fraud and sexual offences trials at level 4.
• Advocates cannot generally appear in any substantial hearing at a higher level than that for which they are accredited, or act as junior in a case more than one level higher.
• To be accredited for level 2 and above, or to move up a level, advocates need to be assessed by judges before whom they are appearing in at least two trials
• Judges “mark” advocates using a Criminal Advocacy Evaluation Form, using 9 standards.
• Accreditation needs to be renewed after 5 years
• The stated purpose of the scheme is to root out incompetent advocates. However…
• The scheme does not appear to have commanded the confidence of the majority of those to whom it is intended to apply.

Key passages in the judgment of the court

The President began with a rather solemn and impressive drumroll…

“It is a critical test of the freedom inherent in our democratic society that those accused (usually by the State) of committing criminal offences can and should be represented by capable criminal advocates, independent in spirit who, subject to the rules of law and procedure which operate in our courts and to the dictates of professional propriety, are prepared to put the interests of their clients at the forefront and irrespective of personal disadvantage. Similarly, advocates instructed to prosecute crime must be impartial, balanced and fair. These are the values, to the great advantage of the rule of law in this country, that have long been embedded in the practice of advocates before our criminal courts.”

In para 3, their Lordships say that for both solicitors and barristers there were until recently “no checks on the performance of advocates once qualified and established in practice”, although there was a system for dealing with complaints of professional misconduct (as opposed to mere incompetence).

The judgment goes on to recount how the BSB and SRA were established in 2006 and 2007 respectively, and how the provision of legal services, and of the regulatory framework, were overhauled by the Legal Services Act 2007. That Act established a system for regulating the regulators, creating the LSB to perform that function. So while the regulators are breathing down the necks of the practitioners, their own necks are being breathed down by the LSB.

The 2007 Act provides by section 176(1) a somewhat circular piece of drafting:

“A person who is a regulated person in relation to an approved regulator has a duty to comply with the regulatory arrangements of the approved regulator as they apply to that person.”

In other words: Do as you’re told.

Representatives of the regulators formed something called the Joint Advocacy Group (JAG) and the scheme proposed by them in late 2009 went through a number of consultations. Initially, the Bar Standards Board (BSB) supported the scheme in principle on the basis of a common standard across 3 different professions underpinned (with reservations) by judicial evaluation: see para 26, 31. Although the idea of judicial assessment was supported by the Lord Chief Justice, Lord Judge, and the Council of Circuit Judges (see para 25), not all judges were fully supportive the idea of marking advocates appearing before them: para 29.

The effect of market forces

A key aspect of the background to the introduction of the scheme was anxiety over the ability of market forces to weed out incompetent advocates, as had occurred in the past, when instructing solicitors would usually be present in court to monitor the performance of barristers, and instructions would dry up in the wake of any perceived incompetence.

“This mechanism of quality control has now been undermined as public funding does not generally provide for the presence of ‘an instructing solicitor’.” (Para 50.)

The JAG in one of its consultation papers adverted specifically to legal aid cuts as a risk factor (quoted at para 52):

 “The changing face of the  legal  landscape coupled with competition and commercial imperatives are putting pressure on the sustained provision of good quality advocacy. The economic climate, both generally and in terms of  legal  aid funds, has created a concern that advocates may accept instructions outside their competence. It is arguable that the funding mechanisms adopted by the  Legal Services  Commission (LSC) and the rates of pay are failing to secure the quality of advocacy expected and a scheme of regulation of advocacy may bridge that market gap.”

In their Lordships’ judgment, the LSB were entitled to accept that market forces were no longer able to assure quality of advocacy, at para 53:

“Indeed, in the three years since the 2010 Consultation Paper was issued the substantial reduction in rates of remuneration for advocates in criminal  legal  aid cases, with the prospect of further reduction, has placed and will place increasing pressure on standards. When work is scarce and rates of pay are declining there must, for example, be a temptation for an advocate to accept work beyond his or her experience or competence.”

The independence of the advocate and the perception of bias

It was common ground that an advocate owes duties both to his client and to the court. These sometimes conflicting duties were analysed in three cases cited: Ridehalgh v Horsefield [1994] Ch 205; Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 and R v Farooqi [2013] EWCA Crim 1649; [2013] CN 1438.

One of the grounds of complaint against QASA was that it created the perception of a relationship of dependence between the advocate and the judge who was to assess him. The advocate’s “hopes and fears” of treatment by the judge could affect his independence as an advocate and the proper performance of his duty to the client.

The court rejected this argument, at paras 65 to 71. Judges had long been a source of references for advancement at the Bar and more recently among solicitor advocates, in the form of appointments as Queen’s Counsel or to Government advocacy panels. It had never been suggested that their clients were disadvantaged when the advocate appeared before a judge who was a potential consultee or referee for such preferment. Rather, any client aware of this would be expecting the client to make a special effort to do well.

(To interject: this response does not seem wholly convincing. First, the vague hope of promotion at some point in future is not as immediate an inhibiting factor on an advocate’s fearless independence as the consciousness of being assessed in this case on this day that QASA necessarily imposes – a consciousness all the more real because the advocate has applied to the judge to perform the assessment. Secondly, the client may well expect better work when the advocate is being tested, but can the client be sure of fearless independence under the searchlight of judicial scrutiny, when the advocate might be tempted, rather, to please the judge, than serve his client. And unlikely as all this may be, it is the perception of bias or of the risk of bias that matters in such cases, not proof of its actuality.)

At paras 68 to 70 their Lordships recognised the “fear” of an advocate, that the judge might mark them down unjustifiably, unfairly even; but judges had always been in a position to complain about advocates; moreover, while judges might not always be right or fair, whether to advocates or anyone else, that did not mean the scheme itself was a threat. Moreover, judges assessing advocates were themselves liable to be the subject of a complaint if they did not do so properly, just as an advocate would be if he failed to act in the best interests of his client.

(This seems to amount to a sort of “equality of vulnerability to complaint” idea, a balance of risk that achieves harmonious equilibrium. Is it good enough that the new system is in effect no worse than what’s already in place?)

Accepting that there were concerns over the effect of the scheme on the independence of the advocate, the court then considered whether the regulators had taken this into account, and concluded that, although it was not expressly considered, this did not matter since the argument was not a sound one, and any failure to have regard to it would not vitiate the scheme (para 75).

The role of the judiciary as assessors

Moreover, in their Lordships’ judgment, the JAG and LSB were plainly entitled to conclude that the scheme required trial judges to conduct the evaluations (as indeed the BSB had originally proposed): para 76. To have an independent assessor sit through the trial would be expensive and they would not have as good a knowledge of the case and the current law and procedure as a serving judge. Moreover, the risk of an advocate conditioning his behaviour to make a pleasing impression was the same whether the assessor was a judge or someone else.

The perceived threat to judicial independence caused by an assessing judge’s fear of being sued or complained against by a dissatisfied advocate was, in their Lordships’ judgment, “so conjectural as not to be real”.

The standard of review

In their Lordships’ judgment, the appropriate standard of judicial review in the present case was according to the normal Wednesbury principles of relevance and reasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, CA).

In fact, the intensity of review had been greater in this case not only because the subject matter fell within an area in which their Lordships as judges has an expertise, but also because the claim raised issues of importance to the administration of justice. Even if the standard to be applied were the more demanding one of proportionality, derived from European and human rights law, as contended by the claimants, that standard had also been met by the decision under review: paras 90 to 91.

The court rejected, at paras 104 to 106, the contention for the claimants that the QASA scheme was an authorisation scheme caught by Directive  2006/123/EC on services in the internal market, and the implementing Provision of  Services  Regulations 2009 (SI 2009 No 2999). The concept of an authorisation scheme concerned the requirements for someone to operate as a member of a particular profession, and not all the rules and standards that person must meet in its practice.

The court also rejected the argument that an advocate’s established practice and clientele was a “possession” for the purpose of article 1 of the First Protocol to the European Human Rights Convention, interference with which was required to be justified as proportionate and procedurally fair. But in any event, the test was satisfied in the case of QASA: paras 113 ff and 130 ff.

Suggestions for improvement

While rejecting all the challenges (para 135), the court went on in para 136 to make suggestions as to how the QASA scheme might be improved:

“Having said that, however, we are prepared to trespass into the area that is for them to determine by making four suggestions which might have the benefit of improving the scheme and reducing the concerns that the Claimants have advanced (which we accept are entirely genuine): whether these ideas are adopted is, of course, for the LSB and the regulators. First, it would be sensible for the form to require the advocate to identify (a) when he or she was first instructed (which would not offend  legal  professional privilege) and (b) whether advice on evidence was provided: in both cases, that would inform the judge as to the background against which any assessment of competence is to be made. Secondly, the judge should be permitted to decline to complete the form if he or she believes, because of the circumstances, that it would not be fair to do so: in that event, the assessment would fall to be made in the next trial. Third, in the event of a third judicial assessment becoming necessary, it should be of the first trial conducted by the advocate in front of a judge other than either of the judges that conducted the first two assessments. Finally, during the course of this judgment, we have identified some areas of ambiguity in the written material. 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.”

Comment

In the course of the day, a lively debate ensued on Twitter and the blogosphere as to the correctness and effect of the judgment. A good flavour of the generally defiant barristerial responses can be gleaned from this post on Halsbury’s Law Exchange.

Three aspects of this judgment seem worth commenting on:

1. The link (or lack of it) to legal aid cuts. During the consultation period, the regulators were adamant that QASA was completely unrelated to the Lord Chancellor’s proposal (subsequently dropped) to introduce price competitive tendering (PCT) in order to effect savings in the overall legal aid bill for criminal justice. Some barristers had expressed the suspicion that QASA was designed to soften them up or make them more amenable to PCT, or to do away with the Cab Rank Rule (according to which a barrister who is competent and available cannot turn down a case simply because he does not approve of the client). By removing client choice, PCT would in effect have made the Cab Rank Rule irrelevant. But PCT was abandoned in the face of widespread protest and instead the Lord Chancellor is trying to impose stringent cuts to legal aid fees. The risk (ventilated at paras 50 to 53 in the judgment) that this might tempt barristers to take on cases above their competence seems a little fanciful: for the most part, they have simply refused to take on cases below what they regard as appropriate payment, or to permit variations in the contracts for cases already assigned.

2. Apparent bias. Judicial evaluation is the key form of assessment under QASA. Inevitably this creates a conflict of interest between the advocate and his client and the appearance of a risk of bias on the part of the judge, who is judging two different matters at the same time. This was discussed more fully in the post entitled QASA hit and myth. As indicated above, the view of this author is that the issue of apparent judicial bias has not been convincingly answered by the Divisional Court’s judgment, and we await further developments.

3. Regulatory overkill. There is a strong perception among some critics of QASA that the whole thing is a skirmish in a bigger war between the legal regulators, with the individual professional bodies (BSB, SRA, Ilex) flexing their muscles to demonstrate that they are getting tough on their own members and defending their turf against the risk of encroachment by the uber-regulator, the LSB. There has been talk of unifiying the regulation of legal services under a single regulator, viz the LSB, and naturally the professional bodies are resisting that. If QASA falls over, the risk of regulatory rethink seems all the more likely. The risk that the individual professional regulators may lose the support and trust of their own members is one that must also haunt them, however. For if one thing has been demonstrated by the whole QASA saga, it’s that the scheme does not appear to have commanded the confidence and support of a majority of those to whom it is intended to apply.

That said, it is the regulators’ job to regulate, without fear or favour, and if that means adopting a tough, top-down stance, so be it. Self-regulation has already earned itself a bad name in the financial and journalistic trades. The legal professions can’t really expect to be treated any differently.

Link to the full judgment on BAILII: R (Lumsdon) Legal Services Board [2014] EWHC 28 (Admin)