Public Law Project v The Lord Chancellor The Office of the Children's Commissioner (Intervener)
Jurisdiction | England & Wales |
Judge | Lord Justice Laws,Lord Justice Kitchin,Lord Justice Christopher Clarke |
Judgment Date | 25 November 2015 |
Neutral Citation | [2015] EWCA Civ 1193 |
Docket Number | Case No: C1/2014/2621 |
Court | Court of Appeal (Civil Division) |
Date | 25 November 2015 |
[2015] EWCA Civ 1193
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Moses LJ, Collins and Jay JJ
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Kitchin
and
Lord Justice Christopher Clarke
Case No: C1/2014/2621
Mr Michael Fordham QC, Mr B Jaffey and Ms N Patel (instructed by The Public Law Project) for the Respondent
Mr James Eadie QC, Mr P Goodall QC and Mr D Lowe (instructed by The Government Legal Department) for the The Lord Chancellor
Mr Paul Bowen QC, Mr E Metcalfe and Ms C Meredith (instructed by Freshfields Bruckhaus Deringer LLP for the OCC) (by written submissions)
Hearing dates: 14 & 15 October 2015
INTRODUCTION
This is the Lord Chancellor's appeal, with permission granted by the court below, against the decision of the Divisional Court (Moses LJ, Collins and Jay JJ: [2015] 1 WLR 251). On the application of the Public Law Project (PLP) the court granted a declaration that legislation which the Lord Chancellor proposed to introduce by statutory instrument would be unlawful.
The case concerns the provision of civil legal aid, which is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO). Schedule 1 to LASPO sets out the categories of case (other than exceptional cases which are dealt with under s.10) in which civil legal aid may be provided. S.9 of LASPO, supplemented by s.41, empowers the Lord Chancellor to amend Schedule 1 by statutory instrument subject to the affirmative resolution procedure in both Houses of Parliament. In a paper published on 5 September 2013 (updated on 27 February 2014) entitled Transforming Legal Aid: Next Steps the Lord Chancellor stated his intention to introduce a residence test which would qualify the provision of civil legal aid in the ordinary course (that is, aside from exceptional cases arising under s.10). The measure would be effected by statutory instrument made under s.9. The Divisional Court held that if introduced the statutory instrument would be unlawful.
At length, before these proceedings were heard in the Divisional Court, the Lord Chancellor produced a draft of the proposed statutory instrument: the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 (the Order). After the hearing but before judgment was delivered, the Order was laid before Parliament and approved by the House of Commons. After judgment in the Divisional Court the Lord Chancellor withdrew the draft before any debate in the House of Lords could take place.
As I have indicated the Divisional Court declared the Order to be unlawful. It did so on two grounds: (1) that it was ultra vires the enabling statute, and (2) that it was unjustifiably discriminatory.
THE LEGISLATION
It is convenient first to describe the material provisions of LASPO. S.1(1) read with s.1(2) obliges the Lord Chancellor to secure that "civil legal services" are made available under s. 9 or 10, or paragraph 3 of Schedule 3. Ss.9 and 10 provide as follows:
"9(1) Civil legal services are to be available to an individual under this Part if –
(a) they are civil legal services described in Part 1 of Schedule 1, and the [Director of Legal Aid Casework] has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).
(2) The Lord Chancellor may by order –
(a) add services to Part 1 of Schedule 1, or
(b) vary or omit services described in that Part (whether by modifying that Part or Part 2, 3 or 4 of the Schedule).
10(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2)… is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable [European Union] rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be a breach."
S.10 is unaffected by the Order.
Schedule 1 Part 1 identifies a lengthy series of cases in which civil legal aid is to be available. They are summarised in an Annex to the Divisional Court's judgment, which I will not replicate. They include cases concerning the protection of children and vulnerable adults, mental health, disability, access to welfare benefits, domestic violence, forced marriage, judicial review, habeas corpus, abuse of public power, clinical negligence, immigration, human trafficking, homelessness and other matters. There are many exclusions from the scope of these categories: they are set out in Schedule 1 Parts 2 and 3. S.41 is an important provision in light of the argument of Mr Eadie QC for the Lord Chancellor. So far as relevant it provides as follows:
"(1) Orders, regulations and directions under this Part –
(a) may make different provision for different cases, circumstances or areas,
(b) may make provision generally or only for specified cases, circumstances or areas,
(c) may make provision having effect for a period specified or described in the order, regulations or direction.
(2) They may, in particular, make provision by reference to –
(a) services provided for the purposes of proceedings before a particular court, tribunal or other person,
(b) services provided for a particular class of individual, or
(c) services provided for individuals selected by reference to particular criteria or on a sampling basis…..
(4) Orders and regulations under this Part are to be made by statutory instrument…..
(6) A statutory instrument containing an order or regulations listed in subsection (7) [which includes orders under s.9]… may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament."
THE RESIDENCE TEST
The means by which, under the Order, the residence test would be introduced into the statute would be by the insertion of a new paragraph (paragraph 19) into Part 2 of Schedule 1. This would create a further exclusion from the scope of Part 1, so that persons who do not fulfil the test would be ineligible for civil legal aid, subject always to s.10. Access to legal aid under s.10 would, as I have said, be unaffected by the Order. The provisions of the Order are described by the Divisional Court at paragraphs 21 to 24 of Moses LJ's judgment. The details of the proposed residence test are helpfully described in Mr Eadie's skeleton argument at paragraphs 8–9 as follows:
"8. To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under
12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days).
There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding ("ECF") regime in s.10 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the ECHR or EU law are able to obtain it."
Mr Eadie submits that the Divisional Court was wrong on both grounds upon which it held the Order to be unlawful. The first, as I have said, was that the Order would be ultra vires the statute.
THE ULTRA VIRES ISSUE
The vires of the Order is stated to arise from ss.9(2)(b), 41(1)(a) and (b), (2)(a) and (b), and 3(b) and (c) of LASPO. At paragraph 20 of his judgment Moses LJ observed that "Mr Eadie agreed that the neatest fit was s.41(2)(b)".
The Judgment of the Divisional Court
Paragraph 37 of Moses LJ's judgment sets out the court's core reasoning on the ultra vires issue:
"Analysis of Part 1 of Schedule 1 shows that the statute seeks to confine civil legal services which the Lord Chancellor must secure to cases which are judged to be of the greatest need. Those cases are identified by reference not only to the circumstances which an individual might face but also by reference to personal characteristics or attributes, for example, children or those suffering from mental ill health. But whether defined by reference to their status or by reference to their circumstances, Part 1 of Schedule 1 seeks to identify those individuals and their circumstances having the greatest need for civil legal services. Leaving aside questions of financial resources and merits, no example can be found within the primary legislation of a distinction drawn between those entitled to civil legal services and those who are not on grounds other than assessment of need. The purpose lying behind the identification of services in Part 1 of Schedule 1 is...
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