Factual and Procedural Background
Company A was created under the Legal Services Act 2007 to supervise approved legal regulators, including Company B (barristers), Company C (solicitors) and Company D (legal executives). On 26 July 2013 Company A approved joint alterations to the regulators’ rules that brought into force “the Scheme,” a mandatory system for judicial assessment of criminal advocates’ competence in The State.
The appellants, criminal-law barristers, sought judicial review, alleging the approval breached Regulation 14 of the Provision of Services Regulations 2009. Both the Divisional Court and the Court of Appeal rejected their claims. The United Kingdom Supreme Court (constituted by Judge Reed, Judge Toulson, Judge Neuberger, Judge Hale and Judge Clarke) granted permission to appeal on the single Regulation 14 issue.
Legal Issues Presented
- Whether the Scheme is an “authorisation scheme” governed by Regulation 14 of the Provision of Services Regulations 2009 and Article 9(1) of Directive 2006/123/EC.
- If so, whether the Scheme satisfies Regulation 14(2)(b) and (c) / Article 9(1)(b) and (c):
(a) that the need for the authorisation is justified by an overriding reason relating to the public interest; and
(b) that the objective pursued cannot be attained by a less restrictive measure.
Arguments of the Parties
Appellants' Arguments
- The Scheme, if an authorisation scheme, contravenes Regulation 14(2)(b) and (c) because any public-interest need could be met by Company B’s alternative “self-certification plus selective monitoring” model.
- The judicial-assessment requirement is unnecessarily onerous, imposes administrative burdens on competent advocates and judges, and therefore is disproportionate.
Company A’s Arguments
- The Scheme is not an “authorisation scheme” within Regulation 14 or the Directive; alternatively, even if it is, it fully meets Article 9(1)(b) and (c).
- Evidence from senior judiciary, a study by The University and reports by Company F revealed sustained concerns about poor criminal advocacy; comprehensive prior assessment is therefore justified.
- A uniform scheme for all criminal advocates is essential to ensure consistency, transparency and public confidence, whereas the B-proposal would replicate ineffective existing complaint mechanisms.
Table of Precedents Cited
| Precedent (case number) |
Rule or Principle Cited For |
Application by the Court |
| Case C-55/94 |
Four-part test for justifying national measures restricting establishment/services. |
Supreme Court adopted the suitability/necessity limbs when assessing proportionality under Article 9(1). |
| Case C-331/88 |
Proportionality review of EU measures; “manifestly inappropriate” threshold where complex policy choices exist. |
Used to contrast intensity of review applicable to EU measures with that applicable to national measures like the Scheme. |
| Case C-491/01 |
Limits of proportionality and interference with property rights. |
Cited to illustrate how proportionality analysis may differ when fundamental rights are engaged. |
| Case C-189/01 |
Clarified “manifestly inappropriate” test and role of predictive assessment. |
Supreme Court noted it is inapplicable when scrutinising national measures that restrict fundamental freedoms. |
| Cases C-154/04 & C-155/04 |
Requirements that authorisation procedures be accessible, timely and based on reliable scientific evidence. |
Referred to show EU demands for sound administration in authorisation schemes. |
| Case C-400/08 |
Burden of proof in demonstrating a less-restrictive alternative. |
Supported view that member states need not negate every hypothetical alternative, only show chosen measure is not inappropriate. |
| Case C-319/06 |
Need for evidential support when invoking public-interest derogations. |
Used to explain scrutiny required when relying on unquantified risks. |
| Case C-41/02 |
Precautionary principle in health protection. |
Analogous to Board’s reliance on risk of poor advocacy despite limited quantitative data. |
| Joined Cases C-358/93 & C-416/93 |
Assessment of whether prior authorisation is necessary or if prior declaration suffices. |
Illustrated court’s need to compare effectiveness of alternative, less restrictive mechanisms. |
| Case C-384/93 |
Member-state discretion (“margin of appreciation”) in selecting level of protection. |
Underpinned Supreme Court’s acceptance of Board’s chosen protection level. |
| Case C-170/04 |
Requirement that less restrictive measures be adopted where equally effective. |
Formed part of Supreme Court’s analytical framework for Article 9(1)(c). |
| Case C-390/99 |
Criteria for lawful prior-authorisation schemes (objective, non-discriminatory, etc.). |
Cited when evaluating structural safeguards within the Scheme. |
| Case C-112/00 |
Balancing fundamental freedoms with protection of expression/assembly; fair-balance test. |
Referenced to illustrate proportionality where competing fundamental interests collide. |
| Case C-36/02 |
Margin of discretion where national constitutional values (human dignity) at stake. |
Noted as parallel to protecting integrity of criminal justice system. |
| UKSC [2013] 39 |
Domestic four-stage proportionality test under Human Rights Act. |
Supreme Court distinguished this domestic test from EU-law proportionality relevant to the present appeal. |
| UKCA [2012] QB 394 |
Earlier adoption of “manifestly inappropriate” standard. |
Supreme Court criticised and declined to follow that standard. |
Court's Reasoning and Analysis
1. Correct legal test. The Court held it must itself determine proportionality, applying EU-law standards, not merely decide whether Company A’s view was “manifestly wrong.”
2. Margin of appreciation. EU jurisprudence allows regulators discretion over both the desired level of public protection and the means chosen, provided measures are not inappropriate.
3. Evidential foundation. Company A collated judicial comment, an academic study and inspection reports evidencing persistent risks of sub-standard advocacy adversely affecting victims, defendants and public confidence.
4. Assessment of alternatives. The Court compared the Scheme with Company B’s November 2012 proposal. Self-certification with ad-hoc monitoring risked incompetent advocates practising undetected; automatic judicial assessment of every advocate at higher levels offered materially greater protection.
5. Proportionality conclusion. Although the exact incidence of poor advocacy could not be quantified, the potential consequences were serious. Requiring all higher-level advocates to undergo initial and periodic judicial evaluation was a proportionate means of securing the objectives of consumer protection and sound administration of justice. No equally effective, less restrictive mechanism was identified.
6. Directive scope left open. Because the Scheme was proportionate even on the assumption that Article 9 applied, the Court found it unnecessary to resolve conclusively whether the Scheme constituted an “authorisation scheme” under the Directive.
Holding and Implications
The appeal was DISMISSED.
Direct Effect: Company A’s July 2013 approval stands; the Scheme remains operative for all criminal advocates.
Broader Implications: The judgment clarifies how UK courts must apply the EU proportionality principle, rejecting the “manifestly inappropriate” threshold for national measures and emphasising a court’s duty to conduct its own substantive assessment while recognising the regulator’s margin of appreciation. No new precedent on the Directive’s precise scope was set.