Timothy Dutton QC and Tetyana Nesterchuk acted for the Bar Standards Board (BSB) in the Divisional Court, the Court of Appeal and the Supreme Court in successfully defending the judicial review challenge brought by the criminal Bar to the lawfulness of the Legal Services Board’s decision to approve the Quality Assurance Scheme for Advocates (QASA) jointly introduced by the three legal regulators, the BSB, the Solicitors Regulation Authority (SRA) and the ILEX Professional Standards Board (IPS).
QASA introduces regular structured assessments of competency of criminal advocates by means of judicial evaluations. In the Divisional Court and the Court of Appeal the Scheme was challenged on a number of grounds, including its failure to comply with constitutional principles of independence of advocates and independence of the judiciary, all of which were dismissed.
The single issue that proceeded to the Supreme Court was whether the Scheme was unlawful under the Services Directive 2006/123/EC and the Provision of Services Regulations 2009 (“the POS Regulations”) which transpose the Directive into domestic law, on the basis that it was an “authorisation scheme” within the scope of the Directive and breached the Directive’s requirement for such a scheme to be proportionate.
The Supreme Court unanimously held that whilst the answer to the question of whether QASA amounted to an “authorisation scheme” falling within the scope of the Services Directive and the POS Regulations was not straightforward, it did not need to refer that question to the Court of Justice since it found the Scheme to be proportionate in any event. The single judgment (jointly given by Lords Reed and Toulson) contains a detailed analysis of the EU principle of proportionality, noting that it is neither expressed nor applied in the same way as the principle of proportionality under the European Convention on Human Rights, and explains the court’s approach to the application of the EU proportionality test in different types of cases.
The judgment can be found here.