R (Lumsdon) v Legal Services Board

The Supreme Court dismissed the appellants' challenge to the Legal Services Board's decision of 26 July 2013 approving joint regulatory arrangements that gave effect to the Quality Assurance Scheme for Advocates (QASA). The sole live ground on appeal was whether the scheme was an "authorisation scheme" within regulation 14 of the Provision of Services Regulations 2009 (implementing article 9(1) of Directive 2006/123/EC) and, if so, whether it complied with article 9(1)(b) and (c) (requiring an overriding public interest justification and that the objective cannot be attained by less restrictive means).

The court analysed the EU principle of proportionality and the relevant case law, rejecting the application of a "manifestly inappropriate" or "manifest error" standard of review in favour of the approach the Court of Justice would adopt in enforcement proceedings: the national court must decide whether the objectives (protection of recipients of services and the sound administration of justice) could be attained by a less restrictive measure, having regard to the member state's margin of appreciation. Applying that test, the court concluded that the Board had sufficient evidential basis to conclude there was a real risk in criminal advocacy and that a comprehensive assessment scheme aimed at ensuring competence at higher levels was proportionate. The court therefore held that, even if the Directive applied, the scheme met the requirements of article 9(1)(b) and (c), and dismissed the appeal.

The Legal Services Board, exercising supervisory functions under the Legal Services Act 2007, approved amended regulatory arrangements proposed jointly by the Bar Standards Board, the Solicitors Regulation Authority and the ILEX Professional Standards Board to implement the Quality Assurance Scheme for Advocates (QASA). The scheme provided for registration by advocates at levels of advocacy and automatic judicial assessment for those practising above Level 1, with accreditation granted or withheld on the basis of judicial evaluations.

Nature of the claim: The appellants, criminal barristers, sought judicial review of the Board's approval decision. Before the Supreme Court the sole question was whether the decision was contrary to regulation 14 of the Provision of Services Regulations 2009 (derived from article 9(1) of Directive 2006/123/EC) on the lawfulness of authorisation schemes.

Procedural history: The Divisional Court rejected the challenge ([2014] EWHC 28 (Admin)); the Court of Appeal dismissed the appeal ([2014] EWCA Civ 1276). Permission to appeal to the Supreme Court was given on the point of regulation 14.

Issues framed by the court:

• Whether the QASA fell within the scope of the Directive as an "authorisation scheme";
• if so, whether the scheme satisfied article 9(1)(b) (justified by an overriding public interest) and article 9(1)(c) (could not be attained by less restrictive means), in particular compared with the BSB's alternative self-certification/monitoring proposal;
• the correct standard and intensity of review under EU law (principle of proportionality) applicable to national measures implementing EU law.

Court's reasoning and decision: The court undertook a detailed exposition of proportionality in EU law and explained the appropriate role of national courts: they must apply the Court of Justice's jurisprudence and, where necessary, decide whether the condition in article 9(1)(c) is satisfied, while acknowledging a margin of appreciation for member states in choosing the level of protection and means of achieving it. The majority rejected treating the Board's decision as immune to close judicial scrutiny by reference to a "manifestly inappropriate" threshold. On the facts, the Board had considered a range of evidence of deficiencies in criminal advocacy, had addressed proportionality and had adopted features (uniform application across advocates, a two-year review, judicial assessment at higher levels) aimed at securing protection of consumers and the administration of justice. The court concluded that a comprehensive assessment scheme was a proportionate response and that the Board was entitled to approve the application. The court did not need to decide definitively whether QASA was formally an authorisation scheme, because, even if it were, it complied with article 9(1)(b) and (c).

Subsidiary findings: The court criticised the courts below for applying an incorrect standard of review (excessive deference) and clarified that the intensity of proportionality review depends on context and the applicable EU jurisprudence; it affirmed that national decision-makers have a margin of appreciation but that this does not preclude the national court from reaching its own conclusion on necessity under the Directive.

Appeal dismissed. The Supreme Court held that, even on the hypothesis that the Quality Assurance Scheme for Advocates fell within the scope of article 9(1) of Directive 2006/123/EC and regulation 14 of the Provision of Services Regulations 2009, the Board had established an overriding public interest (protection of recipients of services and the sound administration of justice) and that the objective could not be attained by a less restrictive measure in a way that would provide the same level of protection. The court set out the correct application of proportionality under EU law and rejected a "manifestly inappropriate" or "manifest error" margin of review as the applicable standard in this context, while acknowledging the member state's margin of appreciation. It therefore concluded the scheme was proportionate and lawfully approved.

Permission to appeal to the Supreme Court was granted after adverse decisions below: Divisional Court [2014] EWHC 28 (Admin); Court of Appeal [2014] EWCA Civ 1276. The Supreme Court heard the appeal and dismissed it ([2015] UKSC 41).