The Supreme Court held that the Lord Chancellor could not introduce a residence test for civil legal aid by a statutory instrument amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The draft order would have removed most civil legal aid from people who failed lawful-residence conditions. That was not a power to vary or omit the legal services for which aid is available.
The draft residence test
In September 2013 the then Lord Chancellor, Christopher Grayling MP, decided to limit civil legal aid by a residence test. Civil legal aid is public funding for legal advice and representation other than in criminal matters. He proposed to make the change not by a new Act, but by a draft order amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The order was laid before Parliament on 31 March 2014.
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As summarised by counsel for the Lord Chancellor, in a description adopted in the Court of Appeal and set out by Lord Neuberger, an applicant would have to be lawfully resident in the United Kingdom, the Channel Islands, the Isle of Man or a British Overseas Territory on the day of the application. Unless under 12 months old, a particular kind of asylum claimant, or involved with the United Kingdom armed forces, the applicant would also have to have been lawfully resident for 12 months at some earlier time, ignoring absences of up to 30 days. Some proceedings were excepted, including domestic violence cases and challenges to the lawfulness of detention. A person who failed the test could still apply for exceptional case funding under section 10, described as the route for securing legal aid where the European Convention or EU law requires it.
The Ministry of Justice called the proposal justified and proportionate. Its stated primary objective was to reduce the cost of legal aid and target limited public resources on the cases and people thought to justify them. The order was said to be made under section 9(2)(b), which allows the Lord Chancellor by order to vary or omit services described in the civil legal aid Schedule, and under ancillary powers in section 41.
The challenge
Before the order was laid, the Public Law Project asked the High Court to declare that it would be unlawful. It argued that the order was ultra vires, meaning outside the power given by LASPO, and that it was unjustifiably discriminatory. The Divisional Court, Moses LJ giving the judgment with Collins and Jay JJ agreeing, accepted both arguments. The draft order was withdrawn and remains withdrawn. The Court of Appeal, Laws LJ giving the judgment with Kitchin and Christopher Clarke LJJ agreeing, allowed the Lord Chancellor’s appeal. It held that the order was within the power and that, although discriminatory, the discrimination could be justified. The Public Law Project appealed on both grounds.
The limits of a power to amend an Act
Lord Neuberger gave the judgment of the Supreme Court. Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson agreed. He distinguished an Act, which Parliament can scrutinise and amend, from a statutory instrument made by a minister. Even though this order would have required the approval of both Houses, Parliament could not amend it and it would receive much less scrutiny than a Bill. The courts may declare subordinate legislation invalid if the minister goes outside the power conferred by the Act. That upholds Parliament’s supremacy over the Executive.
Section 9(2)(b) is a Henry VIII power: subordinate legislation made under it can amend the Act itself, by adding services or by varying or omitting them. Where there is doubt about the scope of a power to modify primary legislation, the doubt is resolved restrictively, because such a delegation is exceptional. If the words leave little room for doubt, however, the court must not cut the power down by an artificial reading.
Why residence was outside the power
Lord Neuberger accepted that excluding a group because of lawful residence, a personal circumstance unconnected with the legal issue, the services, or the person’s need or ability to pay, was not within section 9(2)(b). In ordinary language, the draft order did not vary or omit services. It reduced the class of people entitled to receive them. The statutory words might just about stretch that far, but that was not their natural meaning, and natural meaning carried particular weight in the case of a Henry VIII power. The rest of the Act supported the narrower reading.
The services listed in Schedule 1 are tied to types of legal issue or claim, such as child protection, welfare-benefit appeals, domestic violence, judicial review, specified immigration matters, loss of home and equality. The existing exclusions are also defined by subject matter. The proposed new exclusion would not have related to any specified area of litigation. Some provisions already confine legal aid to one group, such as an alleged victim rather than an alleged perpetrator, but those limits relate to the issue or the services. They did not authorise an exclusion based on residence.
Section 9(1) separates the question whether the services are of a listed kind from the question whether the individual qualifies. Section 9(2) speaks only of services. Who qualifies is addressed by section 11, through financial resources and criteria reflecting matters such as cost and likely benefit, resources, the nature and seriousness of the case, alternatives, prospects of success, conduct in connection with legal aid, and the public interest. Those factors are connected with need, cost, benefit or conduct relating to the services. Read in context, “public interest” did not extend to an unrelated personal characteristic, and it was not argued otherwise. The Lord Chancellor conceded that the order could not have been made under section 11. Lord Neuberger treated that concession as further support for the conclusion that it could not be made under section 9. Lord Carnwath’s reference to the strong presumption that an enactment applies to foreigners within the territory as it applies to people who belong there underlined the point.
Section 41 did not fill the gap. The Court of Appeal had relied on section 41(2)(b), which allows an order to make provision by reference to services provided for a particular class of individual. Lord Neuberger held that section 41 confers ancillary powers only. It does not change the nature of the section 9 power or extend it so as to exclude a whole class by residence. It can support limitations of the kind already found in the Schedule, not the draft order.
Nor was a shared broad aim enough. Lord Neuberger accepted that, in a broad sense, both Part 1 of LASPO and the draft order were concerned with reducing civil legal aid and directing it towards people and claims thought most deserving. He said that this described the statutory purpose far too generally. Drawing on sections 9 and 11 and the Ministry’s June 2011 paper, he identified that purpose as channelling civil legal aid according to the nature and importance of the issue, the need for financial support, the availability of other funding, and the availability of other forms of dispute resolution. A residence requirement was a wholly different sort of criterion.
Verdict: The Court unanimously allowed the Public Law Project’s appeal. The proposed residence test exceeded the Lord Chancellor’s statutory powers. The Court did not decide the separate allegation of discrimination.
Source: R (Public Law Project) v Lord Chancellor [2016] UKSC 39
