The Supreme Court has provided a valuable discussion of the differences between the principle and tests of proportionality in ECHR and EU law.
The case concerned a EU law challenge brought by barristers to the UK’s Quality Assurance Scheme for Advocates (QASA), which required criminal barristers to be judicially assessed before they may accept certain categories of cases. The appellants sought judicial review of the bringing into effect of QASA, alleging that it was contrary to the Provision of Services Regulations 2009. This SI (and the Directive it implemented, 2006/123/EC) stated that authorisations schemes had to satisfy two conditions: the need was justified by an overriding reason relating to the public interest, and the objective pursued could not be attained by a less restrictive measure.
The Supreme Court held as follows:
- EU proportionality was different from ECHR proportionality. The latter involved a four-stage analysis explained in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 (in brief, importance of the objective, rationality, availability of a less intrusive alternative and proportionality). This analysis was not applicable to proportionality in EU law.
- By contrast, EU proportionality was now enshrined in Article 5(4) of the Treaty on European Union: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”.
- In EU law proportionality may arise in a number of circumstances, principally:
- as a ground of review of EU measures themselves (i.e. in cases before the CJEU). Here, a court would only intervene if it considered the measure manifestly inappropriate having regard to the objective pursued.
- in reviews of national measures relying on derogations from general EU rights (mainly fundamental freedoms), where proportionality functioned as a means of preventing disguised discrimination and unnecessary barriers to market integration, and was therefore applied more strictly. Here, the measures should be applied in a non-discriminatory manner, be justified by imperative requirements in the general interest, be suitable for the objective pursued, and not go beyond what was necessary to attain it.
- in reviews of national measures which did not threaten the integration of the internal market, e.g. because the subject-matter was within an area of national rather than EU competence, a less strict approach was generally adopted. Here, the test was the “manifestly inappropriate” one above.
- In the present case, the question was whether the Legal Services Board had established that the objectives pursued by the scheme (namely the protection of recipients of the services and the sound administration of justice) could not be attained by means of a less restrictive scheme. On that basis, the Board’s bringing into force of the QASA was proportionate.
R (on the application of Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015
