Supreme Court on EU and ECHR proportionality – back to basics

27 June 2015 by

seo-marketing-320x200R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)

The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.

And all this in a case about trying to improve standards for barristers’ advocacy.

Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.

Its EU-ness arises in this way.

EU directive 2006/123/EC bears on whether services can be regulated by an authorisation scheme such as this. The LSB said the directive did not apply to QASA; the barristers said it did, and the Supreme Court said that was too difficult for a quick answer, and ought to go off the CJEU if necessary – which, for reasons which will emerge, it was not.

The Directive (and its domestic implementing measure, the Provision of Services Regulations 2009) said that authorisations schemes needed to satisfy two key conditions; (b) the need 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 short, the proportionality test, to be found in an EU-derived measure. So no surprises that EU proportionality was in play.

ECHR proportionality 

Lord Reed reminded us that EU proportionality is not ECHR proportionality, governing the four stage justification of interferences with fundamental rights under the HRA. He himself had set this out carefully in Bank Mellat [2013] UKSC 39 (see my post An ABC of proportionality – with Bank Mellat as our primer, at [74

It is necessary to determine

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right,

(2) whether the measure is rationally connected to the objective,

(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and

(4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter…. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.

EU proportionality

This is now part of the Treaty on European Union (art.5(4)) “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 the UK, the EU concept is put “in more compressed and general terms” than in German and Canadian law: [69] of Bank Mellat, – and Lord Reed remarked the EU cases are “not always clear, at least to a reader from a common law tradition”.

So Lord Reed has made up for lost time in the current case, with nearly 20 pages on the general principles, before applying them to the decision in issue.

One very helpful thing he does is to set out the different circumstances in which proportionality may arise, and the different roles it plays in those different circumstances. There are three main areas:

(i) as a ground of review of EU measures themselves; this inevitably involves cases before the CJEU (a national court cannot allow such a challenge, it can only refer such a case to the CJEU), and hence such challenges are relatively infrequent; [36]

(ii) a review of national measures relying on derogations from general EU rights; here proportionality is used as  means of preventing disguised discrimination and unnecessary barriers to market integration. In this context

the court, seeing itself as the guardian of the treaties and the uniform application of EU law, generally applies the principle more strictly [37]

(iii) a review of national measures implementing EU law;  here member states are generally contributing towards the integration of the internal market, rather than seeking to limit it in their national interests. So, proportionality functions in that context as a conventional public law principle. On the other hand, (as per (ii)) where member states rely on reservations or derogations in EU legislation in order to introduce measures restricting fundamental freedoms, proportionality is generally applied more strictly.

(i) Challenges to EU measures

In a category (i) case, the appropriate test of review is that a court will only intervene if it considers the measure to be manifestly inappropriate.

A leading example is Fedesa [1990] ECR I-4023, concerning an EU ban of certain hormones in livestock. In the classic statement of proportionality the ECJ said at [13]

the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.

Lord Reed tells us to be cautious about the “least onerous” requirement in these circumstances; in practice, the court does not apply it

in any literal sense, but instead considers whether the measure chosen in manifestly inappropriate.

And the legality of an EU measure cannot depend on a retrospective check on a predictive assessment of the effects of certain release. A measure is only manifestly incorrect when judged against the information available at the time of the adoption of the rule.

Cases involving authorisation procedures also require that those procedures reflect principles of sound administration and legal certainty: [47].

Where such a measure involves a challenge on the grounds of interference with fundamental rights, then Article 52 of the EU Charter is relevant

any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

For an example of this, see R v SoS  for Health, Ex p British American Tobacco et al [2002] ECR I-11453, case, in which the manifestly inappropriate test was applied. The requirement for large amount of health warnings did not prejudice the substance of the trademark rights being advertised. So the measure was proportionate.

(ii) National measures derogating from fundamental freedoms

The case law is well developed in the CJEU.  The fundamental freedoms may be right of establishment and the provision of services. The underlying Treaty provisions recognise limitations on those rights. See Gebhard v.Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165,

National measures liable to make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: 1. they must be applied in a non-discriminatory manner; 2. they must be justified by imperative requirements in the general interest; 3. they must be suitable for securing the attainment of the objective which they pursue; and 4. they must not go beyond what is necessary in order to attain it.” (para 37, numbering added)

with the last two of these four conditions relating to proportionality.

These last two conditions are then explored at length. As for 3, the state does not have to show that the restriction is the most appropriate of all possible measures to ensure achievement of the aim, but simply that it is not inappropriate. Contrast 4, where it is necessary to establish that no other measures could have been equally effective but less restive of the freedom in question.

Justifications are examined in detail by the courts, in some cases, particularly those involving economic or social justification, using considerable amounts of evidence [56], although, in certain areas involving risks to health, the precautionary principle comes into play enabling measures to be passed sufficiently early before harm can actually be demonstrated [57]-[60]. Although a purely hypothetical risk can be left out of account, a lesser evidential base may justify action than in other circumstances.

The courts have accepted that where a public interest is engaged in an area where EU has not imposed complete harmonisation, the member state possesses some discretion in choosing an appropriate measure. Courts are unimpressed in arguments which say that the Germans do it less restrictively, so why shouldn’t we.

Where fundamental rights are in play, we are back into the Charter/BAT type arguments set out above. Lord Reed cites a nice example, Schmidberger Internationale v Austria (Case C-112/00) [2003] ECR I-5659.  The Austrian government did not ban a demonstration on a motorway, on the ground of respect for the rights of freedom of expression and freedom of assembly. The demonstration resulted in the motorway’s closure for over a day, restricting the free movement of goods. But neither the freedoms nor the rights were absolute. The right to free movement of goods could be subject to restrictions for the reasons laid down in the Treaty or for overriding reasons of public interest. The rights to freedom of expression and freedom of assembly were also subject to certain limitations justified by objectives in the public interest. Weighing these up, the court accepted that the action in question had been proportionate.

(iii) National measures implementing EU measures

Proportionality arises here, but the test to be applied is the manifestly disproportionate one looked at under (i) above.

At [75], Lord Reed turns to Sinclair Collis Ltd [2011] EWCA Civ 437, and see my post here on the Court of Appeal decision). It was a challenge to a ban on cigarette machines. He points out that the CA analysed the cases on EU measures correctly (giving rise to the manifestly inappropriate test) but wrongly applied them to the facts – a challenge brought in reliance on fundamental freedoms, where the test under (ii) is the correct one. This was wrong.

The result

Lord Reed (for the Court) disapproved of the reasoning of the CA (and the Divisional Court) but agreed with its conclusion on proportionality as applied to the scheme, namely that, even if the directive did apply, the scheme was proportionate as required by its terms.

As for courts below, the Divisional Court used the Bank Mellat/ECHR route to define proportionality – wrong, says Lord Reed at [100].

The CA said it was not for the court to decide whether QASA was disproportionate – oh, yes it was, says Lord Reed at [101].

Building on his conclusion above, a Sinclair Collis-type analysis was wrong for this case.

Lord Reed sets out the correct approach at [108]

(1) It is for the court to decide whether the scheme is proportionate, as part of its function in deciding upon its legality.

(2) In so doing it should approach the matter in the same way in which the Court of Justice would approach the issue in enforcement proceedings.

(3) Article 9(1)(c) [of the Directive] requires the court to decide, in the present case, whether the Board has established that the objectives pursued by the scheme, namely the protection of recipients of the services in question, and the sound administration of justice, cannot be attained by means of a less restrictive scheme, and in particular by means of the procedure set out in the BSB proposal.

(4) That decision does not involve asking whether the Board’s judgment was “manifestly wrong”, or whether the scheme is “manifestly inappropriate”. The court must decide for itself, on the basis of the material before it, whether the condition set out in article 9(1)(c) is satisfied.

(5) In considering the question of necessity arising under article 9(1)(c), it should be borne in mind that EU law permits member states to exercise a margin of appreciation as to the level of protection which should be afforded to the public interest pursued. It also allows them to exercise discretion as to the choice of the means of protecting such an interest, provided that the means chosen are not inappropriate.

Applying those tests, the Board’s decision was proportionate. There was a risk of poor advocacy if the Board had adopted the proposals advanced by the Bar, involving a measure of self-certification; bad advocacy, even were it to be reported back to the regulator, but, for those with the misfortune of having been represented by the advocate,
it will be a case of shutting  the stable door after the horse has bolted.
There is a good deal of common ground in these various different formulations of proportionality, but Lord Reed’s helpful taxonomy will remind us of the various contexts in which a question of proportionality may arise.
So, for those launching into unknown or unfamiliar waters of proportionality, keep out and have handy  – Bank Mellat when it is an HRA question, and this case when it is an EU question. Then at least you will be able to point yourselves in the right direction.
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