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On appeal from: [2014] EWCA Civ 1276.

The Legal Services Board granted an application by the Bar Standards Board, Solicitors Regulation Authority and ILEX Professional Standards Board for approval of alterations to their regulatory arrangements to give effect to the Quality Assurance Scheme for Advocates, which provides for criminal advocates in England and Wales to be assessed by judges. Barristers practising in the area of criminal law sought judicial review of the decision.

The appeal to the Supreme Court proceeded on the question of whether the Board’s decision was contrary to the Provision of Service Regulations 2009, reg 14. To consider this, the Supreme Court needed to bear in mind the following: (1) it is for the court to determine whether the scheme is proportionate (2) the matter should be approached in the same way the CJEU would approach the issue in enforcement proceedings (3) the court has to decide whether the Board has established that the objectives cannot be attained through a less restrictive scheme (4) this does not mean asking whether the Board’s judgment was “manifestly wrong” and (5) in looking at the issue of necessity, the court should note that EU law allows member states to exercise a margin of appreciation in terms of the level of protection to be afforded to the public interest being pursued, and to exercise discretion regarding the choice of how that interest is protected.

The Supreme Court dismissed the appeal. The Board had looked at the potentially serious consequences of poor advocacy and in doing so had considered that the scheme was justified in light of the seriousness of the risk. The Board’s view that a self-certifying scheme would present an unacceptable level of risk did not fall outside the appropriate margin of appreciation. The Quality Assurance Scheme was therefore proportionate to the public interest pursued, as a comprehensive assessment scheme was the only method of giving the level of protection required.

For judgment, please download: [2015] UKSC 41

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII