Attempt to block controversial advocacy assessment regime loses final judicial review hurdle today
Wannabe and junior barristers will fear that the Supreme Court has hammered another nail in the coffin of the criminal bar, when judges ruled today that a controversial assessment regime could be given the green light.
The quality assurance scheme for advocates (QASA) — which has the backing of the Legal Services Board and the frontline individual professional regulators — will put in place a tiered system of advocacy assessment.
Young criminal barristers in particular feel threatened by the proposed regime, as one of the steps to be authorised to continue in practise is completion of four assessed Crown Court trials within a set period.
With an increasing crunch on legal aid rates resulting in criminal solicitors’ firms keeping advocacy work in house, there are fears that young barristers will not be able to meet the requirement within the defined timeframe.
Four barristers — Tom de la Mare QC, Tom Richards and Jana Sadler-Forster of Blackstone Chambers, along with Mark Trafford QC of 23 Essex Street Chambers — brought a judicial review challenge to the proposed QASA system.
They have now lost at every stage and the LSB said today the regime was on track for implementation.
However, the appellants’ law firm — the City of London office of global giant Baker & McKenzie — attempted to put a gloss on the Supreme Court ruling.
Partner Joanna Ludlam said:
Whilst we are disappointed with today’s outcome, the judgment shows that the Supreme Court justices found in favour of our submissions on the law. This will force the regulators to think seriously about future developments of QASA and will help achieve a scheme which better serves the interests of the public and the legal profession.
The Baker McKenzie partner maintained today’s judgment was “groundbreaking” in that “it has set a new legal precedent and will henceforth be a leading authority on the application of the principle of proportionality of EU Law”.
According to the appellants’ lawyers, the ruling enshrined in English law “our interpretation of the important EU principle of proportionality”.
That principle requires that EU law does not go beyond what is necessary to achieve the objectives of EU treaties. However, a Baker & McKenzie statement said:
It is a relatively vague concept and there has been confusion about how it applies in practice, and whether the court should be assessing the question for itself, or deferring to decision makers’ better judgment.
According to the firm, the Supreme Court used the QASA case to assess how to establish whether a measure is proportionate. The court must consider: whether the measure in question is suitable or appropriate to achieve the objective pursued; and whether the measure is necessary to achieve that objective, or whether it could be obtained by a less onerous method.
“The Supreme Court provided extensive, useful commentary on what these questions mean in practice,” said the Baker & McKenzie team.
All of which will be of relatively cold technical comfort to the appellants and junior criminal law barristers.
Welcoming today’s ruling, LSB chief executive Richard Moriarty said:
QASA is proportionate as a scheme, and that the LSB acted lawfully in granting the application made to it.
He continued:
Throughout this process, there has been consensus about how important competent advocacy is in supporting the rule of law. My firm expectation, now that we have clarity on legality, is that the regulators … will proceed with implementing the scheme to assure the public of the competence of criminal advocates.