R (on the application of the Public Law Project) v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeLord Justice Moses,Mr Justice Collins,Mr Justice Jay
Judgment Date15 July 2014
Neutral Citation[2014] EWHC 2365 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date15 July 2014
Docket NumberCase No: CO/17247/2013

[2014] EWHC 2365 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Moses

Mr Justice Collins

Mr Justice Jay

Case No: CO/17247/2013

The Queen on the Application of the Public Law Project
The Secretary of State for Justice
The Office of the Children's Commissioner
Defendant Intervener

Mr Michael Fordham QC, Mr Ben Jaffey, Ms Naina PatelandMs Alison Pickup (instructed by Bindmans LLP) for the Claimant

Mr James Eadie QC, Mr Patrick GoodallandMr David Lowe (instructed by the Treasury Solicitor) for the Defendant

Mr Paul Bowen QC, Mr Eric MetcalfeandMs Catherine Meredith (instructed by Freshfields Bruckhaus Deringer LLP) for the Intervener

Hearing dates: 3 rd–4 th April, 2014

Lord Justice Moses

Part 1 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 identified those cases most in need of public funding. They are not cases in respect of which the United Kingdom is, by virtue of the Human Rights Act 1998 or under the common law right of effective access to the court, obliged to provide legal assistance. Such cases fall within Section 10 of LASPO. The Lord Chancellor now proposes by statutory instrument (the LASPO Act 2012 (Amendment of Schedule 1) Order 2014) to introduce a residence test. All those who fail that test will be, subject to exceptions, removed from the scope of Part 1, although they remain eligible if they fall within Section 10.


Accordingly, the effect of this amendment will be to exclude those who have a better than fifty-fifty chance of establishing a claim, the subject-matter of which is judged as having the highest priority need for legal assistance, but without the means to pay for it, on the grounds that they lack a sufficiently close connection with the country to whose laws they are subject.


PLP contend that the proposed amendment is unlawful: the Lord Chancellor has no power to introduce such an amendment by way of delegated legislation and, in any event, such a discriminatory provision is contrary to common law or breaches Art. 6 read with Art. 14 of the Convention.

The Statutory Scheme


The provisions in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which are relevant to this application came into force on 1 st April 2013.


The Lord Chancellor's obligation under section 1(1), read in conjunction with section 1(2), is to secure that "civil legal services", as specified in section 9 or 10, or paragraph 3 of Schedule 3, are made available.


Section 9 deals with "general cases", and provides:

"(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

(b) the Director 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)."


The Director's function to determine whether the qualification criteria set out in more detail in section 11 are met arises only if the service in question is a civil legal service as described in Part 1 of Schedule 1 (or if he has made an exceptional case determination under s.10(2)). These qualification criteria fall under two headings, namely (i) the financial resources of the applicant for civil legal services (see section 21), and (ii) the range of factors listed in section 11(3) (the governing criteria being fully set out in regulations), including general resource considerations, the importance of the issue to the individual, and the merits of the case.


Section 23 regulates the terms on which an individual to whom services are made available under Part 1 may be required to pay for or make a contribution towards the cost of providing them. Under section 26, the general rule is that an adverse order for costs against a person who has been granted civil legal aid in relevant civil proceedings must not exceed the amount which it is reasonable for him to pay, having regard to the financial resources of all the parties to the proceedings and their conduct.


Part 1 of Schedule 1 lists the civil legal services which are within scope, although each of the 46 services originally specified contains exclusions (save for paragraph 44, which relates to "cross border disputes", and says in terms that it has no exclusions), some of which are expressly described as either general or specific. Annexed to this judgment is a list of these 46 categories of service (but not the exclusions): it is readily apparent that all of them are priority categories where the applicant's need or level of vulnerability is at or near the highest end of the scale.


Section 41 supplements Section 9; it is applicable to all orders, regulations and directions made under Part 1. Section 41 provides, in material part:

"(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.

(5) A statutory instrument containing an order or regulations listed in sub-section (7) [which includes orders under section 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."


Mr Eadie QC relies on section 41(2)(b) as being the principal source of the vires for the order which will implement the residence test. He submits that the power under section 9(2)(b) to vary or omit services included in Part 1 of Schedule 1 includes power to do so with reference to "a particular class of individual", normally a non-resident.


The scheme of LASPO is that general cases are governed by section 9 read in conjunction with Part 1 of Schedule 1, whereas exceptional cases are catered for separately by section 10, which provides so far as is material:

"(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 sub-section (2) … is satisfied.

(2) This sub-section 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 sub-section (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 EU 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."


In short, the Director is obliged to make available civil legal aid where a failure to do so would in any individual case breach, or amount to a substantial interference with, the procedural safeguards guaranteed by Article 6 of the Convention, and has discretion to do so where a risk of such breach arises. The same reasoning applies if any other Convention right is in issue, but Article 6 seems the most obvious candidate.


A number of points arise in relation to the provisions in issue. In many instances those who might benefit from the service specified are sections of the population with characteristics or attributes which define their need: e.g. children; vulnerable adults; disabled persons; those with mental health or mental capacity difficulties etc. The point has already been made that Part 1 is subject to exclusions, and these are set out in Parts 2 or 3 of Schedule 1. Each of the Part 1 categories of service applies some or all of the exclusions (save for paragraph 44). The Part 2 exclusions are defined by reference to types of claim (e.g. property damage; defamation); the Part 3 by reference to types of advocacy service. The effect of falling within a Part 2 excluded service is that the services described in Part 1 are deemed not to include that service, unless Part 1 specifies otherwise.


The operation of the scheme may best be illustrated by taking a handful of examples. Paragraph 2 of Part 1 of Schedule 1 specifies "special educational needs" as being within scope. These are defined more precisely as matters arising under Part 4 of the Education Act 1996 and assessments of learning difficulties under the Learning and Skills Act 2000. These provisions confer relevant privileges, benefits and entitlements without reference to any residence criterion. The whole of Part 2 of Schedule 1 applies to paragraph 2, although the most relevant provisions are paragraphs...

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