21 January 2018

Bar Standards Board statement on the judicial review of the Quality Assurance Scheme for Advocates

20 January 2014

Director of the Bar Standards Board, Dr Vanessa Davies, said:
"We welcome the outcome of the Judicial Review of the Quality Assurance Scheme for Advocates (QASA). We will be giving careful consideration to suggestions made by the Court and any other matters which appear relevant from the judgment. The Board will be discussing the judgment and we will make further announcements as soon as reasonably possible. We appreciate that some members of the profession will be disappointed by the outcome of the JR 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."

ENDS


Notes to editors

About QASA
QASA is designed to protect the public from those advocates who are not as good as they should be.

In order to undertake criminal advocacy, advocates will require QASA accreditation at one of four levels. This will determine the complexity of cases that they are permitted to handle.

The main method of assessment for QASA will be judicial evaluation. Advocates' performance in real trials will be assessed by judges against an agreed set of standards.

It will be a breach of the regulators' rules to conduct criminal advocacy without QASA accreditation.

Further details of QASA appear on the BSB website. The timetable for registration and accreditation is being reviewed to evaluate the impact of the delays caused by the JR and further announcements will be made in due course.

The judgment
The judicial review is a challenge by four barristers to a decision (26 July 2013) by which the Legal Services Board [LSB] approved an application proposed by the BSB (with 2 other regulators, the Solicitors Regulation Authority and ILEX Professional Standards) to introduce the Quality Assurance Scheme for Advocates ("QASA").

The judgment concludes: "For the reasons that we have given, however, we reject each of the challenges to the QASA scheme advanced by the Claimants. In our judgment, the scheme is lawful, does not contravene European law and falls well within the legitimate exercise of the powers of the LSB and the three regulators that submitted it to the LSB for approval." (para 135)

The Court made several suggestions in respect of possible improvements to QASA as follows:
• "It would be sensible for the CAEF to require the advocate to identify (a) when he or she was first instructed and (b) whether advice on evidence was provided as that would inform the judge as to the background against which any assessment of competence is to be made;
• 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.
• 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.
• Areas of ambiguity in the written materials should be clarified. The judgment specifically flags the BSB QASA Rules at paragraph [49] of the judgment relating to the automatic return to full accreditation at Level 1 where there is a failure at Level 2 to obtain accreditation. At paragraph [85] of the judgment, reference is made to BSB Rule 12.4."

The full judgment is available via  http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/lumsden-others-v-lsb-others.pdf

Evidence for QASA
QASA was developed in light of a body of evidence highlighting underperformance in criminal advocacy. See paras 17, 18 and 30 of the judgment
http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/lumsden-others-v-lsb-others.pdf

About the BSB
The mission of the Bar Standards Board is to regulate the Bar so as to promote high standards of practice and safeguard clients and the public interest.

Contact: the Bar Standards Board Press Office on 0207 6111 452.