R (on the application of Lumsdon & Ors) v Legal Services Board [2015] UKSC 41

Criminal barristers challenged the Legal Services Board's approval of the Quality Assurance Scheme for Advocates (QASA), which required judicial assessment of advocates. The Supreme Court dismissed the appeal, holding that even if the scheme was an authorisation scheme under EU law, it was proportionate and justified.

Facts

The Legal Services Board (‘the Board’), established under the Legal Services Act 2007, exercises supervisory functions over approved regulators of legal services, including the Bar Standards Board (BSB), Solicitors Regulation Authority (SRA) and ILEX Professional Standards Board (IPS). On 26 July 2013, the Board approved a joint application by these regulators for the Quality Assurance Scheme for Advocates (QASA), which provides for judicial assessment of criminal advocates in England and Wales.

The scheme classifies criminal cases into four levels. Advocates wishing to practise at higher levels must register for provisional accreditation at the appropriate level, then undergo judicial assessment in at least two of their first three effective trials. Assessment uses nine standards in a Criminal Advocacy Evaluation Form. There is no right of appeal against an individual judicial assessment.

In November 2012, the BSB had proposed an alternative scheme based on self-certification, with judicial assessment only when concerns arose through monitoring referrals or a rolling programme. The Board, SRA and IPS opposed this, and the BSB ultimately joined the joint scheme. The appellants, criminal barristers, sought judicial review, with the sole question on appeal being whether the decision contravened regulation 14 of the Provision of Services Regulations 2009, implementing article 9(1) of Directive 2006/123/EC.

Issues

The single issue was whether the Board’s decision was contrary to regulation 14 of the 2009 Regulations, specifically:

• Whether the need for the authorisation scheme was justified by an overriding reason relating to the public interest (regulation 14(2)(b) / article 9(1)(b)); and
• Whether the objective pursued could be attained by a less restrictive measure (regulation 14(2)(c) / article 9(1)(c)).

A further question was whether QASA constituted an ‘authorisation scheme’ within the scope of the Directive at all.

Arguments

Appellants

The appellants argued that the scheme failed to comply with article 9(1)(b) and (c). They contended that the Court of Appeal’s reasoning was faulty for failing to focus on whether the BSB’s alternative would be any less effective, and rested on the unestablished premise that barristers, solicitors and legal executives presented the same risk profile. They submitted that the BSB’s own previous proposal was evidence that the approved scheme was not the least burdensome means of achieving the objective.

Respondent

The Board submitted that the scheme did not fall within the Directive’s scope and that, in any event, it complied with article 9(1)(b) and (c). The Board considered that judicial evaluation of all advocates wishing to practise at upper levels was essential, and that the BSB’s alternative would add little to pre-existing arrangements which had had little impact.

Judgment

Clarification of EU Proportionality

Lord Reed and Lord Toulson (with whom Lord Neuberger, Lady Hale and Lord Clarke agreed) took the opportunity to clarify the EU principle of proportionality. They emphasised that EU proportionality is neither expressed nor applied in the same way as proportionality under the European Convention on Human Rights, and that the four-stage Bank Mellat analysis is not applicable. The intensity of review varies by context:

• For EU measures involving political, economic or social choices, the court applies a ‘manifestly inappropriate’ test;
• For national measures derogating from fundamental freedoms, stricter scrutiny applies, considering suitability and necessity, though member states retain a margin of appreciation as to the level of protection and choice of means;
• For national measures implementing EU law, a ‘manifestly disproportionate’ test may apply where discretion is conferred.

The Court criticised the Court of Appeal’s reliance on the ‘manifestly inappropriate’ test derived from R (Sinclair Collis Ltd) v Secretary of State for Health, observing that those judgments had incorrectly transposed a test developed for EU institutional measures into the context of national measures restricting fundamental freedoms.

Errors of the Courts Below

The Supreme Court held that both the Divisional Court and the Court of Appeal had misapplied the relevant test. The Divisional Court had wrongly applied the Bank Mellat human rights analysis. The Court of Appeal had erred in stating that it was not for the court to decide whether QASA was disproportionate, and in applying a ‘manifestly wrong’ test. The Court reaffirmed that it is for the court itself to decide whether the scheme is proportionate, approaching the matter as the Court of Justice would in enforcement proceedings.

The Court of Appeal had also wrongly treated ‘having a single accreditation scheme’ as a relevant objective: an authorisation scheme is not an objective in itself but must be justified by some other overriding public interest reason, namely consumer protection and the sound administration of justice.

Reconsideration on the Correct Basis

Applying the correct approach, the Supreme Court held that the scheme was proportionate. The core feature of QASA — that every criminal advocate wishing to practise at upper levels must undergo judicial assessment — provides a high level of public protection by ensuring no advocate slips through the net. A self-certification scheme of the kind proposed by the BSB presented a higher risk, since an advocate might wrongly consider himself competent, and detection through a rolling programme was uncertain (especially for those appearing infrequently at upper levels).

Although the level of risk could not be quantified precisely, this did not preclude the Board from considering it unacceptable. The decision fell within the margin of appreciation allowed to member states regarding the level of protection. As the only way to provide the desired level of protection for all members of the public involved in upper-level criminal proceedings was through a scheme of the kind proposed, it followed that the scheme was proportionate.

Scope of the Directive

The Court declined to decide whether QASA was in fact an ‘authorisation scheme’ within the Directive, indicating it would be inclined to refer this to the Court of Justice if necessary. Given the conclusion that the scheme complied with article 9(1)(b) and (c) even if it fell within the Directive, the question did not need to be resolved.

Implications

This judgment provides authoritative guidance on the application of the EU principle of proportionality by national courts. Several principles emerge:

• EU proportionality differs materially from proportionality under the Human Rights Act and the Bank Mellat framework should not be transposed automatically;
• The intensity of proportionality review depends heavily on context — the ‘manifestly inappropriate’ test applies to review of EU institutional measures and certain implementing measures, but stricter review applies to national measures restricting fundamental freedoms;
• Where proportionality is in issue before a national court, it is for that court to decide the question itself, not merely to review the decision-maker’s view on a ‘manifestly wrong’ standard;
• Nevertheless, member states retain a margin of appreciation regarding both the level of protection of public interests and the choice of appropriate means, particularly in areas without complete EU harmonisation;
• The reasoning of the majority in Sinclair Collis is criticised insofar as it applied the ‘manifestly inappropriate’ test to national measures restricting fundamental freedoms.

For practitioners, the decision is important both for its clarification of EU proportionality (significant in any case involving the Services Directive or fundamental freedoms) and for confirming that comprehensive professional regulation schemes such as QASA can satisfy EU law where they address genuine risks to consumers and the administration of justice. The case matters to regulators, regulated professionals, and lawyers advising on EU services law. The Court left open whether QASA actually falls within the Directive’s scope, and the boundaries of the margin of appreciation in different regulatory contexts remain fact-sensitive.

Verdict: The appeal was dismissed. The Supreme Court held that, even on the assumption that the Quality Assurance Scheme for Advocates was an authorisation scheme within the scope of Directive 2006/123/EC, it complied with article 9(1)(b) and (c) of the Directive and regulation 14 of the Provision of Services Regulations 2009, and the Legal Services Board was entitled to grant the application for its approval.

Source: R (on the application of Lumsdon & Ors) v Legal Services Board [2015] UKSC 41