Description
Judicial review challenging a decision of the Legal Services Board (LSB) to approve the introduction of the Quality Assurance Scheme for Advocates (QASA).
The scheme was lawful, did not contravene European law and fell well within the legitimate exercise of the powers of the LSB and the three regulators that submitted it for approval. Held,
inter alia: Although the
Provision of Services Regulations 2009, implementing Directive 2006/123/EC on services in the internal market, apply to internal situations, an authorisation scheme is limited to the basic rules about who can enter and carry on a particular service activity. It does not extend to rules, such as provided by QASA, which ensure competence once the provider is engaged in the activity.
In cases involving professional practices, restrictions on an applicant's right to practise is an interference with their property right (A1P1, ECHR) where the restriction significantly affects the conditions for and reduces the scope of professional activities and where, as a consequence of the restriction, the applicant's income and the value of their clientele and business falls (
Malik v United Kingdom [2012] ECHR 23780/08 at [105]). The right is limited to an established practice or a marketable asset having a monetary value and does not extend to an expectation of future income (
R (Malik) v Waltham Forest NHS Primary Care Trust [2007] EWCA Civ 265).
- Although the claim raised issues as to the administration of justice and therefore required a higher intensity of review, on a clear reading of the Legal Services Act 2007, the appropriate standard was Wednesbury unreasonableness and not proportionality. Although proportionality was incorporated into the Act, it placed a duty solely on the regulators. Nor could it be said that the practices of criminal advocates were possessions within A1P1 nor, if that was incorrect, that the QASA requirement that they obtain accreditation amounted to an interference;
- It was not necessary for each point in issue to be addressed by the LSB when it took its decision to approve the application, nor would a failure to have regard to an issue, such as the independence of the advocate, have vitiated the Scheme. The approved regulators were entitled to design the Scheme, and the LSB to approve it, in the form in which they did;
- There was no risk of infringing the independence of advocates nor the judiciary. In regard to independence, the duty to the client does not include the duty to inform of assessment;
- Given a purposive construction, BSB Rule 12.4 (applications for full accreditation at Levels 2, 3 or 4) does not prevent an appeal against rejection of accreditation. The scheme has adequate appeal rights and adjudicators sufficiently wide powers to meet art 6, ECHR (were it engaged - the court did not reach a view on this point).
However, the following four suggestions were made: 'First, it would be sensible for the form to require the advocate to identify (a) when he or she was first instructed (which would not offend legal professional privilege) and (b) whether advice on evidence was provided: in both cases, that would inform the judge as to the background against which any assessment of competence is to be made. Secondly, 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. Third, 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. Finally...QASA goes to the heart of the practice development of criminal advocates and every step should be taken to ensure that the scheme is completely clear to all called upon to comply with it' (at [136]).
