Supreme Court upholds quality assurance scheme for advocates

24/06/15

The Supreme court today rejected an attempt by a group of barristers to strike down the quality assurance scheme for advocates, which had been approved by the Legal Services Board. The barristers had argued that the scheme was contrary to regulation 14 of the Provision of Services Regulations 2009, which implement Council Directive 2006/123 (the Services Directive).

The judgment of Lord Reed and Lord Toulson (with which Lord Neuberger, Lady Hale and Lord Clarke agreed) contains an important discussion of the principle of proportionality in EU law. Differing from the Court of Appeal, the Court distinguished between the approach to EU measures (where the “manifestly inappropriate” test applies) and the approach to national measures derogating from a fundamental freedom (where a stricter approach is required). The reasoning of the Court of Appeal in Sinclair Collis (though not the result) was disapproved. A contrast was drawn between the approach to proportionality under the ECHR and the approach required by EU law.

The Court held that, when considering the proportionality of a national measure restricting a fundamental right: "It is for the court to decide whether the scheme is disproportionate. The court must apply the principle of proportionality and reach its own conclusion.”

Applying that to the quality assurance scheme for advocates, the court held that the scheme was  proportionate because, on the facts, no less intrusive measure would have served the regulatory objective as well.

The Court did not find it necessary to decide whether the scheme was an authorisation scheme falling within the Directive.    

The judgment is here