Lumsdon and Others v Legal Services Board

On 7 October 2014 the Court of Appeal (the Master of the Rolls, Lord Justice Fulford and Lady Justice Sharp) handed down judgment on the Appeal from the Divisional Court's decision to reject a judicial review challenge to the Quality Scheme for Advocates (QASA) brought by four criminal barristers and supported by the Criminal Bar Association.

QASA is a scheme for the assessment of criminal advocates developed by the Bar Standards Board, the Solicitors Regulation Authority and Ilex Professional Services which includes the assessment of an advocate's performance by judges hearing criminal cases.  It was approved by the Legal Services Board (LSB) on 26th July 2013.  Implementation of the scheme has been delayed pending the outcome of the judicial review.

The Court of Appeal dismissed all of the grounds of appeal.  In the lead judgment, the Master of the Rolls concluded: "For the reasons we have given, we reject all the claimants' challenges to the lawfulness of QASA.  It is clear that this is a controversial scheme on which opinions are sharply divided.  It is not part of the court's function to express any view about the merits of the scheme.  We can only interfere with the decision if it is unlawful."

Summary of Grounds and the Court of Appeal's Findings

1. The Divisional Court erred in its approach to the independence of (a) the advocate and (b) the judiciary (also an error made by the LSB)

The Appellants argued that QASA exposes criminal advocates to unacceptable pressures that would tend to deter them from representing clients or from doing so effectively; that the LSB failed properly to consider whether QASA would expose the advocates to such pressures; and that the LSB misdirected itself in only considering whether QASA would actually undermine the independence of the advocate – it should also have considered whether it would give rise to a perceived threat to the independence of the advocate.

The Court of Appeal considered the regulatory objectives as set out in the Legal Services Act 2007, observed that these were aspirational in form, and concluded that whether they were achieved was a question for the LSB and not the Court. It was further observed that for the most part the regulatory objectives will be in harmony with each other, but where they are not, the regulators have to carry out a balancing exercise.

The Court of Appeal considered the ten elements of the scheme which the Appellants said risked the independence of advocates and concluded that those elements did not individually or cumulatively undermine the independence of advocates by exposing them to unacceptable pressures so as to interfere with their ability to represent their clients effectively.

The Court of Appeal said that the issue is not whether QASA undermines the independence of the advocate but whether the LSB acted in breach of its statutory duty in relation to the question of the independence of the advocate (although the Court did say that if it were necessary to decide whether QASA undermines the independence of the advocate, they would conclude that it does not do so). The Court rejected the Appellants' submissions that the LSB had not correctly directed itself as to the actual or perceived risk to the independence of advocates.

In relation to the Appellants' argument that QASA threatened judicial independence, the Court of Appeal found that no fair-minded observer would consider that there was a real risk that (i) the possibility of a judge being sued (following completion of a QASA evaluation) or (ii) the fact that the assessment would be communicated to the advocate would have any impact on the way in which the judge conducted the proceedings.

2. The Divisional Court erred in misconstruing the appeal provisions of QASA

The Appellants argued that the construction used by the Divisional Court in interpreting the BSB's appeals policy had strayed beyond any permissible principle of interpretation. The Court of Appeal found that the BSB's appeal provisions were not clear and should be amended for clarity. However, the Court found that even if there was a flaw in the appeal provisions, that would not be a sound or reasonable basis for striking down the LSB's decision.

3. The Divisional Court erred in finding that the standard of review required by domestic law was irrationality, rather than proportionality

The Appellants argued that the proportionality standard of review (i.e. as opposed to the Wednesbury standard) applies at common law to any interference with fundamental constitutional principles. The Appellants further argued that on a proper construction the Legal Services Act 2007 required a proportionality test to be applied.

The Court of Appeal did not accept that a proportionality test is required by domestic law and in particular found that whilst Parliament has made express provision for the way in which proportionality is to fit into the decision-making process, namely by being a matter which the LSB is to take into account, Parliament has not imposed an obligation on the LSB to promote regulatory activities which are proportionate. The Court further found that in any event QASA does not involve any interference with fundamental rights or constitutional principles as it does not undermine the independence of the advocate or the judiciary. The Court of Appeal did however observe that in respect of this matter, a "heightened" Wednesbury standard of review should be applied. This was on the basis that the Court enjoys a high level of institutional competence and constitutional legitimacy when addressing challenges to the criminal justice process.

4. The Divisional Court erred in finding that QASA did not come within the scope of the Provision of Services (POS) Regulations 2009 and 5. The Divisional Court erred in finding that QASA was proportionate

The Appellants further submitted that proportionality is required because QASA is an "authorisation scheme" within the meaning of the POS Regulations. The Court of Appeal found that they were "inclined to the view" that the question of whether QASA is an "authorisation scheme" is not clear and that if it were necessary for the resolution of the proportionality issue to decide whether QASA is an "authorisation scheme" then the Court should refer the question to the CJEU. However, this was not necessary as the Court of Appeal found that the LSB had addressed the issue of proportionality and was entitled to conclude that QASA was proportionate.

Iain Miller and Amy Tschobotko of Bevan Brittan acted on behalf of the Bar Standards Board in both the Divisional Court and the Court of Appeal.