R (on the application of Lumsdon and others) v Legal Services Board [2014] EWCA Civ 1276

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Criminal barristers sought judicial review of the decision of the Legal Services Board (LSB) to implement the Quality Assurance Scheme for Advocates (QASA), a scheme for the assessment of the performance of criminal advocates in England and Wales by Judges. The Court held that it was not for them to decide whether the QASA was disproportionate and that the LSB was entitled to a substantial margin of discretion in relation to the question of whether the decision was proportionate. 

Facts

The Appellants were criminal barristers who sought judicial review of the decision of the Legal Services Board to implement the Quality Assurance Scheme for Advocates, a scheme for the assessment of the performance of criminal advocates in England and Wales by Judges.

The grounds for the Appellants' application were: first that the QASA was unlawful and undermined the independence of criminal advocates and judges; second that the QASA did not provide adequate appeal rights and as such was unfair under common law and contrary to Article 6 of the European Convention on Human Rights; and third that LSB had been too closely involved in the design of the QASA and as a result had breached its statutory powers.

The Appellants' grounds of challenge were rejected by the Divisional Court but they appealed with the permission of Tomlinson and Briggs LJJ. The grounds for appeal were that the Divisional Court: erred in its approach to the independence of the advocate and the judiciary; misconstrued the appeal provisions of the QASA; erred in finding that the standard of review required by domestic law was irrationality, rather than proportionality; and erred in finding that the QASA did not come within the scope of the Provision of Services Regulations 2009 (POS Regulations) and in finding that the QASA was proportionate.

Ms Rose QC advanced three submissions on behalf of the Appellants, as follows:

  • That the QASA was unlawful in that the cumulative effect of ten elements of the QASA is to undermine the independence of advocates by exposing them to pressures which may deter them from effectively representing clients;
  • The LSB failed to consider whether the QASA would expose the advocate to such pressures; and
  • The LSB only considered whether the QASA would actually undermine the independence of the advocate and failed to consider whether it would give rise to a perceived threat to independence of the advocate.

The appeal was dismissed.

Judgment

Lord Dyson MR at paragraph 19 stated, 'Section 3(2)(b) requires the LSB to act in a way which it considers most appropriate for the purpose of meeting the regulatory objectives, which are not tightly defined. Section 3(3)(a) requires it to have regard to the principles under which regulatory activities should be "transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed"'.

Lord Dyson further confirmed that the "regulatory objectives" include "protecting and promoting the public interest" and it is therefore important that criminal advocates are not only independent but competent, which is no less important than independence. The LSB is required to act in a way which is compatible with all of the regulatory objectives and which it considers most appropriate for the purpose of meeting all of the objectives. There is no legal requirement for the advocate to be shielded from any possible pressure to act otherwise than independently in the client's interest.

Lord Dyson stated that the ten elements of the QASA identified by the Appellants 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.

However, Lord Dyson held that the issue for the Court to decide was not whether the 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.

It was held that the decision to implement the QASA was made by the LSB after the most careful independent consideration on its part of whether the QASA would expose advocates to unwarranted pressures. Lord Dyson at paragraph 44 stated that "the considered view of the LSB was that there was no significant risk that the independence of advocates would be undermined. In reaching its conclusion it took into account the fact that there was no actual evidence that there was such a risk."

It was further held that no fair-minded informed observer would consider that there was a real risk that (i) the possibility of the judge being sued 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.

In relation to whether there was an effective right of appeal it was held that even if there was a flaw in the appeal provisions, that was not a sound or reasonable basis for striking down the LSB's decision.

Lord Dyson held that it was not for the court to decide whether the QASA was disproportionate and that the LSB was entitled to a substantial margin of discretion in
relation to the question of whether the decision was proportionate. The Court was satisfied that the LSB addressed the issue of proportionality and was entitled to conclude that the QASA was proportionate.

It was held that there was no basis for holding that the decision of the LSB was unlawful.

Medcalf v Mardell [2002] 3 All ER 721 considered.

Bank Mellat v Her Majesty's Treasury [2013] 4 All ER 533 applied.

Decision of Divisional Court [2014] All ER (D) 123 (Jan) affirmed.