R (on the application of Lumsdon and Others) v Legal Services Board

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Reed,Lady Hale,Lord Neuberger,Lord Clarke,Lord Toulson
Judgment Date24 June 2015
Neutral Citation[2015] UKSC 41
Date24 June 2015

[2015] UKSC 41

THE SUPREME COURT

Trinity Term

On appeal from: [2014] EWCA Civ 1276

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Clarke

Lord Reed

Lord Toulson

R (on the application of Lumsdon and others)
(Appellants)
and
Legal Services Board
(Respondent)

Appellants

Tom de la Mare QC

Mark Trafford QC Tom Richards Jana Sadler-Forster

(Instructed by Baker & McKenzie LLP)

Respondent

Nigel Giffin QC Martin Chamberlain QC

(Instructed by Fieldfisher)

Intervener (Bar Standards Board)

Timothy Dutton QC Tetyana Nesterchuk

(Instructed by Bevan Brittan LLP)

Heard on 16 March 2015

Lord Toulson

Lord Reed AND (with whom Lord Neuberger, Lady Hale and Lord Clarke agree)

1

The Legal Services Board ("the Board") was established by the Legal Services Act 2007 ("the 2007 Act"). It exercises supervisory functions in relation to approved regulators of persons carrying on legal activities, including the Bar Standards Board ("BSB"), the Solicitors Regulation Authority ("SRA") and the ILEX Professional Standards Board ("IPS").

2

This appeal concerns the lawfulness of the Board's decision on 26 July 2013 to grant a joint application by the BSB, SRA and IPS for approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates ("the scheme"), which provides for the assessment of the performance of criminal advocates in England and Wales by judges.

3

The appellants are barristers practising criminal law. They seek judicial review of the decision on a variety of grounds, all of which were rejected by the Divisional Court and the Court of Appeal: [2014] EWHC 28 (Admin) and [2014] EWCA Civ 1276 respectively. They were given permission to appeal to this court on the single question whether the decision was contrary to regulation 14 of the Provision of Services Regulations 2009 (SI 2009/2999) ("the Regulations").

The Regulations
4

The Regulations were made under section 2(2) of the European Communities Act 1972, in order to implement Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (OJ No L 376, 27.12. 2006, p 36) ("the Directive").

5

Regulation 14 provides, so far as material:

"(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."

6

Regulation 14 implements article 9(1) of the Directive, which is in almost identical terms. In particular, regulation 14(2)(b) reproduces verbatim article 9(1)(b) of the Directive, while regulation 14(2)(c) departs from article 9(1)(c) only by translating the Latin phrase used in the Directive, "an a posteriori inspection", into the less elegant English, "inspection after commencement of the service activity". It will be necessary to return to the Directive.

7

Finally, in relation to the domestic legislation, it is necessary to note section 3 of the 2007 Act:

"(1) In discharging its functions the Board must comply with the requirements of this section.

(2) The Board must, so far as is reasonably practicable, act in a way —

(a) which is compatible with the regulatory objectives, and

(b) which the Board considers most appropriate for the purpose of meeting those objectives.

(3) The Board must have regard to —

(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed, and

(b) any other principle appearing to it to represent the best regulatory practice."

The principles set out in section 3(3)(a) are known as the "Better Regulation Principles".

The scheme
8

The details of the scheme are set out in the QASA Handbook and in separate sets of regulatory arrangements for the BSB, IPS and SRA. For barristers the relevant provisions are in the Handbook and the BSB QASA Rules. The object of the scheme is to ensure that those who appear as advocates in criminal courts have the necessary competence. The scheme was devised because of serious concern about the poor quality of some criminal advocacy. There was a general (although not universal) acceptance that there was a need for some form of quality assurance scheme involving assessment by the judiciary. The judgment of the Divisional Court [2014] EWHC 28 (Admin) gives a detailed history of how the scheme came to be developed (at paras 16 to 38) and a detailed description of the nature of the scheme (at paras 39 to 50).

9

In outline, the scheme classifies criminal cases at four levels. Magistrates' Court and Youth Court work is within Level 1. Trials at the Crown Court are at one of the upper levels, which are graded according to the seriousness and complexity of the work. Any advocate wishing to carry out work at one of the upper levels is required to register for provisional accreditation at the appropriate level. He must then be judicially assessed in at least two of his first three effective trials at that level. If he is assessed as "competent", he will be granted full accreditation at that level, which will be valid for five years. The assessment is carried out by the trial judge, against nine standards and a number of performance indicators set out in a Criminal Advocacy Evaluation Form.

10

If an advocate wishes to progress, for example from Level 2 to 3, he must first be judicially assessed as "very competent" at Level 2 in at least two out of three consecutive effective trials over a 12 month period. He must then obtain at least two evaluations as "competent" in his first three consecutive trials at Level 3. If an advocate is refused accreditation at the level for which he has applied, he drops back to his previous level but can seek to work his way up again. There is no right of appeal against an individual assessment by a judge.

The BSB proposal of November 2012
11

Between December 2009 and July 2012 the BSB, SRA and IPS, acting together as a Joint Advocacy Group ("JAG"), issued a series of consultation papers which led to various amendments of the proposed scheme. After the fourth consultation, on 1 November 2012 the BSB proposed an alternative scheme under which advocates would register at the level which they thought appropriate for themselves and would be free to move up a level when they felt competent to do so. They would remain at their chosen level unless judicial concerns were raised about their competence through "monitoring referrals" or evaluations in a rolling programme of judicial assessment. The BSB argued that this would be a more proportionate method of quality assurance than a scheme which required a positive assessment before full accreditation at any of the higher levels, essentially because it would be less burdensome for the many advocates who were competent. In its paper explaining its proposal the BSB said that its approach had the benefit that "regulatory action is targeted at where there is the greatest risk" and that "Those who act within their competence and do not present a risk to the public or the wider regulatory objectives will therefore be subject to minimal oversight and administrative burdens".

12

The BSB's proposal met with opposition from the Board, SRA and IPS. The Board considered that judicial evaluation of all advocates wishing to practise at the upper levels was essential for the effectiveness of the scheme and that the BSB's proposal would add little to the pre-existing arrangements for judges to raise concerns with regulators, which had little impact on the problem. The response of the Board, SRA and IPS placed the BSB in a dilemma whether to continue to participate with the other members of JAG in a joint scheme or to devise a separate accreditation scheme for barristers. It decided for various reasons to continue to participate in a joint scheme involving prior accreditation and to negotiate various amendments on points of detail.

The decision under challenge
13

In the decision under challenge, the Board explicitly proceeded on the basis that the scheme was not an authorisation scheme within the meaning of the Regulations or the Directive. It did not consider how regulation 14, or article 9(1), would apply to the scheme in the event that it was properly classified as an authorisation scheme. The Board did however have regard to the Better Regulation Principles, in accordance with section 3(3)(a) of the 2007 Act.

14

The Board noted that, in developing the scheme, it was the duty of the BSB and other approved regulators to have regard to the Better Regulation Principles. It was the BSB's duty to undertake the policy development and drafting of the arrangements. It was also their responsibility to provide in their application any relevant material which supported it, including evidence establishing the necessity for regulatory arrangements. The Board had itself undertaken a review of the history and development of the scheme in order to reassure itself that there was a risk which needed to be addressed and that there was a firm rationale for the particular scheme proposed.

15

In that regard, the Board noted that concerns had been expressed over a long period of time about standards of criminal advocacy. A range of evidence pointed towards a risk, and in some places a pattern, of advocacy not being of the required standard. This included...

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