Lumsdon & Ors, R (on the application of) v Legal Services Board & Ors

The Legal Services Board must make a judgment which balances all the regulatory objectives under the Legal Services Act 2007. The independence of advocates is important but is not absolute, and judicial assessment is unlawful only if it creates an unacceptable systemic risk that advocates will be deterred from representing clients effectively.

In assessing that risk, actual and perceived dependence are not separate questions. The inquiry is whether a fair-minded and informed observer would see a real possibility that judicial assessment would undermine the advocate’s independence. A regulatory scheme concerning criminal advocacy is subject to heightened Wednesbury review, not domestic proportionality review, where the statute requires the regulator merely to have regard to proportionality.

The appellants were criminal barristers who sought judicial review of the Legal Services Board’s approval of the Quality Assurance Scheme for Advocates (QASA). The scheme provided for judicial assessment of criminal advocates as part of accreditation at different levels of practice.

The Divisional Court dismissed every ground of challenge: [2013] EWHC 28 (Admin). The appellants contended that QASA compromised the independence of advocates and judges, lacked an effective appeal, attracted proportionality review under domestic and EU law, and was disproportionate.

The central issue was whether the Board’s approval of QASA was unlawful.

1. Appeal dismissed. The Legal Services Board (LSB) lawfully approved QASA. The court’s function was to review legality, not to decide the merits of a controversial regulatory scheme.

2. The Legal Services Act 2007 required the LSB, so far as reasonably practicable, to act compatibly with all regulatory objectives and in the way it considered most appropriate to meet them. Advocate independence was an important consideration, but had to be weighed with the public interest in competent advocacy and the other objectives. Independence did not require the elimination of every possible pressure on an advocate.

3. QASA did not create an unacceptable systemic threat to advocate independence. The scheme’s features, separately and cumulatively, did not realistically tend to deter advocates from representing clients effectively. Its assessment process, judicial training, transparent criteria and appeal safeguards were material. For a predictive assessment of a regulatory scheme, actual and perceived risk were one question: whether the fair-minded and informed observer would perceive a real possibility that judicial assessment undermined independence. The LSB had considered that issue and was entitled to find no significant risk.

4. The possibility that an advocate might sue over an adverse assessment could affect whether a judge completed, or the tenor of, an assessment. It could not affect the judge’s independent conduct of the underlying proceedings. Nor did communication of an assessment infringe judicial independence, because it concerned neither the merits of the case nor a communication while the judge retained it.

5. The QASA appeal provisions were unclear, particularly as to the meaning of “unreasonable” and the circumstances in which an assessment’s substance could be challenged. They should be clarified. That uncertainty, or even a flaw in the provisions, was not a sound or reasonable basis for quashing the LSB’s approval.

6. Domestic law did not require proportionality review. Section 3(3)(a) required the LSB to have regard to regulatory principles including proportionality; it did not make each principle a free-standing, judicially enforceable objective. The appropriate standard was heightened Wednesbury review, reflecting the court’s expertise and constitutional legitimacy concerning the criminal justice process.

7. Assuming, without deciding, that QASA was an authorisation scheme under the Provision of Services Regulations 2009 and that EU proportionality applied, the approval was proportionate. The LSB had substantial discretion in this complex and controversial regulatory policy. It was entitled to conclude that a less intrusive, barrister-only monitoring alternative would unacceptably compromise the objective of comprehensive and consistent accreditation.

• Court of Appeal (Civil Division): dismissed the appellants’ appeal and upheld the LSB’s approval of QASA: [2014] EWCA Civ 1276 .
• High Court, Divisional Court: dismissed the judicial-review challenge to the approval of QASA: [2013] EWHC 28 (Admin).