R v Legal Services Board

When a national authorisation measure restricts an EU fundamental freedom, the national court must decide proportionality for itself. It must determine whether the measure is suitable and whether an equally effective, less restrictive measure could attain the legitimate objective. Review is not confined to asking whether the decision-maker was manifestly wrong.

EU law nevertheless permits a margin of appreciation in selecting the level of public protection and the means of securing it. A precautionary scheme requiring individual assessment may therefore be proportionate where self-certification would expose service recipients to a greater risk and would not provide the chosen level of protection. This approach governs article 9(1) of Directive 2006/123/EC and regulation 14 of the Provision of Services Regulations 2009.

The appellants were criminal barristers challenging the Legal Services Board’s approval of the Quality Assurance Scheme for Advocates. The scheme required advocates practising above the lowest level to obtain provisional accreditation and undergo judicial assessment before receiving full accreditation.

The Divisional Court dismissed the judicial review in [2014] EWHC 28 (Admin), and the Court of Appeal dismissed the appeal in [2014] EWCA Civ 1276. Permission to appeal was confined to whether the Board’s decision contravened regulation 14 of the Provision of Services Regulations 2009. The central issue was whether the scheme’s objectives could be attained by the less restrictive, predominantly self-certifying scheme proposed by the Bar Standards Board.

1. Disposition. The appeal was dismissed unanimously. Lord Reed and Lord Toulson delivered a joint judgment, with which Lord Neuberger, Lady Hale and Lord Clarke agreed.
2. The applicable proportionality standard. Proportionality in EU law is context-sensitive. The four-stage domestic rights analysis explained in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 does not govern every EU proportionality question. Where a national measure restricts a fundamental freedom, the court must examine whether it is suitable for the legitimate objective and whether that objective could be attained equally effectively by a less restrictive measure.
3. The court’s responsibility. It was for the reviewing court to decide whether the scheme was proportionate. The Divisional Court had used the wrong framework, while the Court of Appeal had wrongly asked whether the Board’s judgment was manifestly wrong. The reasoning in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, so far as it transferred the manifestly inappropriate standard from review of EU measures to national restrictions on fundamental freedoms, did not provide reliable guidance.
4. Margin of appreciation. The court’s independent assessment did not eliminate the national decision-maker’s margin of appreciation. EU law allowed judgment about the desired level of protection and discretion in choosing suitable means. The measure would nevertheless be disproportionate if an equally effective and less restrictive alternative could provide that chosen protection.
5. Application. Protecting recipients of criminal advocacy and safeguarding the sound administration of justice were legitimate public-interest objectives under article 9(1)(b) of Directive 2006/123/EC. Having a single accreditation scheme was not an objective in itself. A self-certifying scheme created a greater risk that an advocate would practise beyond his or her competence before deficiencies were detected. The Board could regard that risk as unacceptable even though it could not be quantified precisely. Universal judicial assessment was the only identified means of providing the chosen level of protection to every person represented in higher-level criminal proceedings. The scheme therefore satisfied article 9(1)(c), despite the inconvenience imposed on competent advocates.
6. Scope of the Directive. The court did not decide whether the scheme was an authorisation scheme within the Directive. That question was not straightforward and might otherwise have required a reference to the Court of Justice. It was unnecessary to resolve because the scheme complied with article 9(1)(b) and (c) on the assumption that the Directive applied.

• United Kingdom Supreme Court: In R v Legal Services Board [2015] UKSC 41, the court unanimously dismissed the appeal, while correcting the proportionality analysis used below.
• Court of Appeal: In [2014] EWCA Civ 1276, the court dismissed the appeal and upheld the Board’s approval of the scheme.
• Divisional Court: In [2014] EWHC 28 (Admin), the court rejected the grounds of judicial review.