Cheshire East Council

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Supreme Court agrees to hear battle over QASA scheme in March

The Supreme Court has granted a group of criminal barristers permission in part to appeal in the dispute over the introduction of the controversial Quality Assurance Scheme for Advocates (QASA).

The Court of Appeal rejected the barristers’ challenge to the lawfulness of QASA in October 2014 on all grounds.

The appellants advanced two grounds in their application to the Supreme Court for permission to appeal:

  1. Whether the Court of Appeal erred in determining that the principle of independence of the advocate was not infringed by the QASA;
  2. Whether the Court Of Appeal erred in law by failing to appreciate the effect of Regulation 14 of the Provision of Service Regulations 2009.

A panel of three Supreme Court justices gave permission in R (on the application of Lumsdon and others) v Legal Services Board UKSC 2014/0272 after reviewing relevant written submissions.

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The Supreme Court ordered that:

“(1) Permission to appeal be granted on ground 2 only (the effect of regulation 14 of the POS Regulations) and on ground 2, the Court -
(a) is 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”, and
(b) 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.
 
(2) permission to appeal be refused on the remaining grounds because the Panel considers that they do not have a real prospect of success.”
 
The court made a protective costs order. The hearing has been provisionally listed for 16 March 2015.

The Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards proposed on 14 May 2013 to introduce QASA.

Under the scheme criminal advocates wishing to exercise rights of audience at a higher level would be obliged to apply for accreditation. Accreditation would be dependent on assessments carried out by trial judges during trials conducted by the advocate seeking accreditation. If refused accreditation, advocates would not be permitted to practice at a higher level.

The appellants sought judicial review of the decision by the Legal Services Board to approve the proposed introduction of QASA. However, they have lost in both the Divisional Court and the Court of Appeal.

Director General of the Bar Standards Board, Dr Vanessa Davies said: “The Supreme Court has allowed the claimants in the judicial review of the QASA to appeal against one aspect of the judgment of the Court of Appeal 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.’” 

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