Kenny: very low level risk to judicial independence
The legal director of the Legal Services Board (LSB) disagreed with its decision to approve the Quality Assurance Scheme for Advocates (QASA) because he wanted to ensure that the impact on judicial independence had been fully considered, it has emerged.
With registration for QASA opening next week, the news of Nick Glockling’s opposition will be seized on by the many advocates who are planning to boycott the scheme and still hope that it will be scrapped.
The revelation came in newly published minutes of the meeting on 24 July at which the LSB approved the regulatory changes needed to bring QASA into being.
Though the Legal Services Act 2007 allows applications of this nature to be approved by the LSB’s chairman and chief executive, the joint application from the Bar Standards Board (BSB), Solicitors Regulation Authority and ILEX Professional Standards was brought before the full board given its “sensitivity and high profile”.
The minutes of the meeting said: “The recommendation from the executive (with the legal director dissenting) to approve had been informed by internal and external legal advice. The legal director advised that the board should issue a warning notice and consider refusing the application.
“When pressed by the board as to what further advice would assist the board in its decision, the legal director advised seeking the views of the judiciary as to whether it could manage the risk to judicial independence from judicial evaluation.”
However, the board members concluded that “there was no indication that further information received at this stage would be any more helpful”.
Having also considered legal advice and noted the then potential application for judicial review – which has now materialised – the minutes said that “the argument in favour of granting the application was sufficiently strong notwithstanding the risks as set out”.
In the decision notice published afterwards, LSB chief executive Chris Kenny said the board thought the risk to judicial independence was “very low level”.
He wrote: “The independence of the judiciary is underpinned by the principle of separation of powers and judicial independence is one of the core values of our justice system.
“Judicial independence is also governed by relevant legislation (such as the Constitutional Reform Act 2005) and will remain subject to that legislation’s provisions. Additional safeguards in place include the Guide to Judicial Conduct which was updated in March 2013 and this includes provisions relating to judicial independence and impartiality.
“The board also took into consideration that the scheme introduces transparent and consistent criteria for advocates to be judged against and that judges will receive training on how to apply these criteria.
“It could be argued that the scheme will be more robust and transparent than what happens under current arrangements, where judges may provide feedback informally on the performance of advocates via the circuits to heads of chambers rather than via the approved regulator.”
The LSB minutes also said “it was accepted that any legal challenge was likely to result in a delay to implementation of the scheme” – but subsequently the BSB has said this will not happen.
Earlier this month the BSB said the parties have agreed a timetable which will mean that, if permission is granted for the judicial review, the case can be heard and decided “well before any assessments are in fact made and indeed before the first phase of registration ends”.
NOTE: The opening paragraph was amended at 11am on 26 September to make clear that Mr Glockling’s concern was that the board was making a fully informed decision on the issue of judicial independence, rather than that he personally had concerns.
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