The Supreme Court gave judgment today (24 June) in R (Lumsdon) v Legal Services Board, the judicial review claim challenging the LSB’s approval of QASA – the quality assurance scheme for criminal advocates. The Court held that the scheme was a proportionate measure, and in doing so it gave important guidance on the correct approach to issues of proportionality in EU law.
In the courts below, the claimants had challenged the LSB’s decision, unsuccessfully, on a number of grounds. The sole ground of appeal to the Supreme Court was that the scheme was contrary to regulation 14 of the Provision of Services Regulations 2009, which implement the Services Directive (2006/123/EC), because it was alleged to be an authorisation scheme not justified by an overriding reason relating to the public interest. This was in effect a requirement of proportionality.
The Court assumed, without deciding, that QASA was indeed an authorisation scheme, in circumstances where it did not deal with entitlement to engage in a particular profession, but rather with the competence that had to be shown to undertake work at a specific level – the Court indicated that this was not a straightforward issue, which it would have been inclined to refer to the CJEU, had it been necessary to decide it.
The Supreme Court emphasised that, despite some common ground, the principle of proportionality in EU law was not expressed or applied in the same way as the proportionality principle under the ECHR. That is a departure from a number of previous decisions, which had appeared to adopt very much the same approach in both the EU and ECHR contexts. In relation to EU law, the Court distinguished between the application of proportionality according to whether the measure being reviewed was an EU measure, a national measure implementing EU law, or a national measure relying upon derogations from EU law rights (such as the “fundamental freedoms” under the TFEU). The approach to proportionality would usually be stricter in the latter context, although it would be less strict where the national measure did not threaten the integration of the internal market, or where an unregulated economic activity would be harmful to consumers. The Court discusses the kind of evidence that will be required to establish proportionality, and how a precautionary approach may be appropriate where goods or services present known and serious risks to the public.
The judgment emphasises that proportionality is a matter for the court itself to decide if there is a challenge, not the one for the decision-maker. Nonetheless, the decision-maker will enjoy some margin of discretion, both in choosing an appropriate measure, and in deciding what level of protection to give to the public interest in question (the latter being important when it comes to the question of whether some less intrusive but equally effective alternative could have been adopted).
Importantly, it is made clear that the “manifestly inappropriate” test of whether a measure is disproportionate does not apply to national measures derogating from EU rights. The appropriate level of scrutiny is more rigorous than that. To that extent, the approach previously suggested in the well-known Sinclair Collis case has been overruled.
The question in the present case was whether a less intrusive measure than QASA could have been adopted without unacceptably compromising the objective of improving the standards of advocacy in criminal courts. On the facts, QASA was proportionate and within the legitimate margin of the regulator’s discretion. It was a precautionary scheme, and the regulators had been entitled to opt for a high level of public protection by adopting a scheme of comprehensive assessment, and to reject alternatives which would pose a higher level of risk by allowing some advocates to slip through the net. The appeal was dismissed.
Nigel Giffin KC of 11KBW appeared for the Legal Services Board throughout the litigation.
