Katherine Lumsdon and Others v Legal Services Board General Council of the Bar (acting by the Bar Standards Board) and Others (Interested Parties)

JurisdictionEngland & Wales
JudgeMaster of the Rolls
Judgment Date07 October 2014
Neutral Citation[2014] EWCA Civ 1276
Date07 October 2014
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2014/0417

[2014] EWCA Civ 1276

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, DIVISIONAL COURT

SIR BRIAN LEVESON P, BEAN AND CRANSTON JJ

[2014] EWHC 28 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

MASTER OF THE ROLLS

Lord Justice Fulford

and

Lady Justice Sharp

Case No: C1/2014/0417

Between:

The Queen on the Application of

(1) Katherine Lumsdon
(2) Rufus Taylor
(3) David Howker QC
(4) Christopher Hewertson
Appellants
and
Legal Services Board
Respondent

and

(1) General Council of the Bar (acting by the Bar Standards Board)
(2) Solicitors Regulation Authority
(3) Ilex Professional Standards
(4) Law Society of England and Wales
Interested Parties

Dinah Rose QC, Tom de la Mare QC. Mark Trafford, Tom RichardsandJana Sadler-Forster (instructed by Baker & McKenzie LLP) for the Appellants.

Nigel Giffin QC and Duncan Sinclair (instructed by Field Fisher Waterhouse) for the Respondent.

Timothy Dutton QC and Tetyana Nesterchuk (instructed by Bevan Brittan LLP) for the First Interested Party (the BSB).

Hearing date: 16, 17 & 18 July 2014

Master of the Rolls

Master of the Rolls: this is the judgment of the court.

1

The Legal Services Board ("LSB") was established pursuant to the Legal Services Act 2007 ("the Act"). One of its functions is to oversee the approved regulators of the legal profession and to ensure that they carry out their regulatory functions to the required standards. The approved regulators relevant for current purposes are the Bar Standards Board ("BSB"), the Solicitors Regulation Authority ("SRA"), the ILEX Professional Standards Board ("IPS") and others. These proceedings are concerned with the lawfulness of the decision of the LSB ("the Decision") to approve a joint application by the BSB, SRA and IPS to introduce the Quality Assurance Scheme for Advocates ("QASA"). The approved regulators established a joint body called "the Joint Advocacy Group" ("JAG"). QASA is a scheme for the assessment of the performance of criminal advocates in England and Wales by judges.

2

The claimants are barristers practising in criminal law. At the forefront of their case is an attack on the constitutional propriety of the judicial assessment for which QASA provides. They seek judicial review of the Decision on a number of grounds. These include that it undermines the independence of the advocate whose performance is assessed and the judge by whom the assessment is made. All their grounds of challenge were rejected by the Divisional Court (Sir Brian Leveson P, Bean and Cranston JJ), [2013] EWHC 28 (Admin). They appeal with the permission of Tomlinson and Briggs LJJ.

The Legal Services Act

3

The Act overhauled the framework for the provision of legal services in England and Wales. At its heart are the eight "regulatory objectives" set out in section 1—

"(a) protecting and promoting the public interest;

(b) supporting the constitutional principle of the rule of law;

(c) improving access to justice;

(d) protecting and promoting the interests of consumers;

(e) promoting competition in the provision of services within subsection (2);

(f) encouraging an independent, strong, diverse and effective legal profession;

(g) increasing public understanding of the citizen's legal rights and duties;

(h) promoting and maintaining adherence to the professional principles."

4

Section 1(3) provides that the "professional principles" are—

"(a) that authorised persons should act with independence and integrity,

(b) that authorised persons should maintain proper standards of work,

(c) that authorised persons should act in the best interests of their clients,

(d) that persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice, and

(e) that the affairs of clients should be kept confidential.

(4) In this section "authorised persons" means authorised persons in relation to activities which are reserved legal activities [which are defined at s12(1) as including exercising rights of audience]."

5

Section 3 provides:

"(1) In discharging its functions, the Board must comply with the requirements of this section.

(2) The Board must, so far as is reasonably practicable, act in a way –

(a) which is compatible with the regulatory objectives, and

(b) which the Board considers most appropriate for the purpose of meeting those objectives.

(3) The Board must have regard to –

(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and

(b) any other principle appearing to it to represent the best regulatory practice."

6

Part 4 of the Act provides for the LSB to oversee the work of the "approved regulators". In relation to the Bar, this function is delegated by the Bar Council to the BSB; in relation to solicitors by the Law Society to the SRA; and in relation to Legal Executives by CILEX to its regulatory arm, the IPS.

7

Section 28(2) provides that:

"The approved regulator must, so far as is reasonably practicable, act in a way—

(a) which is compatible with the regulatory objectives, and

(b) which the approved regulator considers most appropriate for the purpose of meeting those objectives."

8

If an approved regulator makes an application under paragraph 20 of Schedule 4 to approve an alteration or alterations of its regulatory arrangements, then the LSB must deal with such application in accordance with paragraphs 21–27 of that Schedule. Paragraph 25 provides:

(1) After considering –

(a) the application and any accompanying material,

(b) any other information provided by the approved regulator,

(c) any advice obtained under paragraph 22,

(d) any representations duly made under paragraph 23, and

(e) any other information which the Board considers relevant to the application,

the Board must decide whether to grant the application.

(2) The Board may grant the application in whole or in part.

(3) The Board may refuse the application only if it is satisfied that –

(a) granting the application would be prejudicial to the regulatory objectives,

(b) granting the application would be contrary to any provision made by or by virtue of this Act or any other enactment or would result in any of the designation requirements ceasing to be satisfied in relation to the approved regulator,

(c) granting the application would be contrary to the public interest…

The history of QASA

9

This is set out in some detail at paras 16 to 38 of the judgment of the Divisional Court to which reference should be made. What emerges from the history is that (i) there was strong evidence of poor quality advocacy in the criminal courts; and (ii) there was general (but by no means universal) acceptance of the need for some form of quality assurance scheme policed by the judges.

10

From the LSB's perspective, the position is summarised in paras 2 to 33 of the first witness statement of Mr Kenny (its Chief Executive). He says that the key points were (i) the potential consequences of poor advocacy in the criminal justice system were extremely serious; (ii) there were significant concerns about poor quality advocacy; (iii) there were reasons to believe that, in the absence of appropriate action, such problems would increase over time; (iv) there was a lack of satisfactory evidence about standards, precisely because there was no scheme such as QASA in place (introducing QASA, with the commitment to a review of its operation after a relatively short period, will allow for any appropriate changes to be made in the light of better evidence); and (v) it was important for there to be a common approach to the regulation of standards in criminal advocacy (different standards for the three professions would undermine public confidence and would be inimical to competition and consumer choice).

The details of QASA

11

These are described in detail at paras 39 to 50 of the Divisional Court's judgment. We gratefully adopt its account. For convenience, we attach this part of its judgment as an Annex to our judgment.

The Decision

12

The LSB said that it was of the view that poor advocacy "risks having a detrimental impact on victims, witnesses, the accused and on public confidence in the rule of law and administration of justice" (para 25 of the decision). It considered that the proposed Scheme had "the potential to provide reliable and sustained evidence for approved regulators to measure and improve the quality of criminal advocacy over time" (para 28). It was assured by the commitment by the regulators to review the Scheme after two years (para 29). At paras 30 to 40, the LSB discussed "Issues raised about the Scheme". It noted that JAG had consulted four times on the details of the Scheme and aspects of it had been adjusted as a result of representations made during the consultations. It considered that "on balance, the applicants have responded to issues raised during the consultation and have adjusted the Scheme to make it proportionate and targeted without undermining its potential effectiveness" (para 30). It concluded that the Scheme was not an "authorisation scheme" within the meaning of the Provision of Services Regulations 2009 ("the POS Regulations"). We need to set out paras 35 and 36 in full, since they are central to the main challenges to the Decision that have been made in these proceedings:

"35. The Board considered whether...

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