Barristers lose Supreme Court challenge to QASA advocacy scheme

The Supreme Court has rejected a challenge brought by criminal barristers to the Quality Assurance Scheme for Advocates (QASA).

The appellants in R (on the application of Lumsdon and others) v Legal Services Board [2015] UKSC 41 had previously lost in both the High Court and the Court of Appeal.

On 26 July 2013 the Legal Services Board (LSB) granted an application by the Joint Advocacy Group – comprising the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards (now CILEx Regulation) – for approval of alterations to their regulatory arrangements to give effect to QASA.

In making its decision the Board had regard to the “Better Regulation Principles” in section 3(3)(a) of the Legal Services Act 2007. It also noted concerns about standards of criminal advocacy and evidence pointing to a risk of advocacy not being of the required standard.

Full accreditation for criminal work at one of the upper levels in the QASA scheme depends on an assessment as “competent” by a trial judge.

The appellants were given permission to take the case to the Supreme Court on the single question of whether the LSB’s decision to approve was contrary to regulation 14 of the Provision of Service Regulations 2009, which the Board considered did not apply.

The Regulations implemented Directive 2006/123/EC on services in the internal market. Regulation 14 is nearly identical to article 9(1) of the Directive. It provides:

“(1) A competent authority must not make access to, or the exercise of, a service activity subject to an authorisation scheme unless the following conditions are satisfied.

(2) The conditions are that –

(a) the authorisation scheme does not discriminate against a provider of the service,

(b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest, and

(c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because inspection after commencement of the service activity would take place too late to be genuinely effective.”

The Supreme Court unanimously dismissed the appeal. Lord Reed and Lord Toulson gave a joint judgment with which Lord Neuberger, Lady Hale and Lord Clarke agreed.

Lord Reed and Lord Toulson considered the appellants’ submissions that the scheme failed to meet the conditions set out in regulation 14(2)(b) and (c) on the hypothesis that the Directive (and therefore the Regulations) applied to the scheme.

They reviewed the case-law of the Court of Justice of the European Union on the principle of proportionality, which was given effect in the Directive in article 9(1)(c) from which regulation 14(2)(c) was derived.

Lord Reed and Lord Toulson reasoned that the issue was whether the legitimate and important objectives of protecting recipients of the services in question, and the sound administration of justice, justified the scheme in the form approved by the Board.

Judicial assessment was automatic in relation to all advocates, and was carried out in order to decide whether full accreditation should be granted, for renewal of accreditation and for progression to higher levels. The BSB had previously suggested an alternative proposal whereby judicial assessment would take place only if concerns were raised about a particular advocate, through a rolling programme of judicial assessment.

The critical question, Lord Reed and Lord Toulson said, was whether the objectives could not be attained by means of a less restrictive measure.

They said the proper basis for considering the requirement of article 9(1)(c) of the Directive and regulation 14(2)(c) was:

• it was for the court to decide whether the scheme was proportionate;
• it should approach the matter in the same way in which the CJEU would approach the issue in enforcement proceedings;
• the court must decide whether the Board has established that the objectives could not be attained by means of a less restrictive scheme;
• that did not involve asking whether the Board’s judgment was “manifestly wrong”;
• in considering the question of necessity arising under article 9(1)(c), it should be borne in mind that EU law permitted member states to exercise a margin of appreciation as to the level of protection to be afforded to the public interest pursued, and to exercise discretion as to the choice of means of protecting such an interest.

The LSB had noted the potentially serious consequences of poor advocacy and considered that a scheme applicable to advocates generally was justified in view of the gravity of the risk. It also noted that the scheme was to be reviewed after two years.

The core feature of the scheme was that every criminal advocate who wished to practise at one of the upper levels must undertake judicial assessment at the outset, the judges said.

A precautionary scheme of this kind provided a high level of public protection and placed a corresponding burden on those affected by it. Whether such a level of protection should be provided was exactly the sort of question about which the national decision maker was allowed to exercise its judgment, the judges said.

In Lord Reed and Lord Toulson’s opinion, the Board’s judgment that the level of risk presented by a self-certifying scheme, such as the BSB’s previous proposal, was unacceptable, did not fall outside the appropriate margin of appreciation.

“Since the only way of reducing the risk, so as to provide the desired level of protection for all members of the public involved in criminal proceedings at an upper level, was to have a scheme of the kind proposed by the JAG, it follows that the scheme was proportionate to the objective, notwithstanding the inconvenience caused to competent members of the profession,” they concluded.

Accordingly the BSB had been entitled to grant the application of the three regulations.

[This article was based heavily on the Supreme Court’s press summary.]