R (Lumsdon) v Legal Services Board

The Court of Appeal dismissed the claimants' challenge to the Legal Services Board's approval of the Quality Assurance Scheme for Advocates (QASA). The court held that QASA did not unlawfully undermine the independence of advocates or of the judiciary, that the Legal Services Board (LSB) had appropriately considered the issues raised (including perceived as well as actual risks), that the scheme was not irrational under domestic review principles and was, on the evidence, a proportionate regulatory measure. The court also found that the scheme was not plainly an authorisation scheme under the Provision of Services Regulations 2009 for the purposes of this decision, and that any defects in the clarity of the BSB's appeals process should be remedied by the regulator rather than by quashing the LSB decision.

Background and parties: The Legal Services Board approved a joint application by approved regulators (notably the Bar Standards Board) to introduce QASA, a judicially‑based assessment scheme for criminal advocates. The claimants, criminal barristers, sought judicial review of the LSB decision arguing that QASA undermined the independence of advocates and of judges and that it was unlawful and disproportionate, including because it fell within the Provision of Services Regulations (the POS Regulations) as an authorisation scheme.

Nature of the claim and relief sought: The claimants sought to quash the LSB decision approving QASA and contended the Decision breached statutory duties under the Legal Services Act 2007, domestic common law protections for advocate and judicial independence, the European Convention on Human Rights and EU services law.

Procedural posture: The claim was dismissed by the Divisional Court ([2013] EWHC 28 (Admin)). The claimants appealed to the Court of Appeal with permission.

Issues framed:

• Whether QASA (and the LSB's approval) undermined the independence of advocates by exposing them to pressures so as to deter fearless representation;
• Whether QASA undermined judicial independence (including perceived independence) and exposed judges to an unacceptable risk of litigation;
• Whether the LSB applied the correct standard of review (Wednesbury/irrationality or proportionality) and properly considered proportionality and evidence;
• Whether QASA fell within the POS Regulations as an 'authorisation scheme' and therefore attracted EU proportionality requirements;
• Whether the BSB appeals mechanism provided an effective right of appeal compatible with article 6 and fair process.

Reasoning and outcome: The court accepted the foundational importance of advocate independence but emphasised that it is not absolute and must be balanced with other regulatory objectives in the Legal Services Act 2007, including protection of the public and maintenance of proper standards of work. The court examined the ten elements relied on as cumulatively undermining advocate independence and concluded they did not demonstrate a systemic risk. The LSB had considered the points (including a letter before claim) and applied relevant material; the court found no failure to address perceived as distinct from actual risk. On judicial independence the court held the risks were low and, even if present, would not affect a judge's conduct of proceedings. The court applied a heightened Wednesbury standard of review (not a free‑standing proportionality test under domestic law) and concluded the LSB's decision was lawful; it also addressed EU law by assuming arguendo that QASA was an authorisation scheme and found the LSB's proportionality assessment was within its margin of discretion. The court urged clarification of the BSB appeals procedure but did not quash the LSB decision. The claimants' challenges were rejected and the appeal dismissed. The regulators' proposed two‑year review of QASA was noted as an important safeguard.

Appeal dismissed. The Court of Appeal held that the Legal Services Board lawfully approved QASA: the scheme did not pose a systemic threat to the independence of advocates or of the judiciary; the LSB sufficiently considered both actual and perceived risks; the appropriate domestic standard of review was a heightened Wednesbury/irrationality test (not an automatic proportionality inquiry), and on that test the Decision was lawful. The court also concluded that, even assuming EU services law might apply, the LSB’s assessment of proportionality fell within its margin of discretion. The court recommended clarification of the BSB appeals procedure but declined to quash the Decision.

Appeal from the Divisional Court of the Queen's Bench Division ([2013] EWHC 28 (Admin)) to the Court of Appeal ([2014] EWCA Civ 1276). Permission to appeal was granted by Tomlinson and Briggs LJJ. The Court of Appeal dismissed the appeal and upheld the Divisional Court’s decision.