R (on the application of The Public Law Project) v Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lady Hale,Lord Mance,Lord Reed,Lord Carnwath,Lord Hughes,Lord Toulson |
| Judgment Date | 13 July 2016 |
| Neutral Citation | [2016] UKSC 39 |
| Court | Supreme Court |
| Date | 13 July 2016 |
[2016] UKSC 39
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Reed
Lord Carnwath
Lord Hughes
Lord Toulson
Appellant
Michael Fordham QC Ben Jaffey Naina Patel Alison Pickup
(Instructed by Bindmans LLP)
Respondent
James Eadie QC Patrick Goodall QC Simon Pritchard David Lowe
(Instructed by The Government Legal Department)
Intervener (Office of the Children's Commissioner)
Written submissions only
Paul Bowen QC Eric Metcalfe Catherine Meredith
(Instructed by Freshfields Bruckhaus Deringer LLP)
Intervener (The Law Society)
Written submissions only
Dinah Rose QC Iain Steele
(Instructed by The Law Society)
Heard on 18 April 2016
( with whom Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson agree)
This appeal concerns the lawfulness of a proposal by the Lord Chancellor (then The Rt Hon Christopher Grayling MP) in September 2013 to introduce a residence test for civil legal aid by amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (" LASPO"), by means of delegated legislation, in the form of a statutory instrument, which I will refer to as "the draft order".
In November 2010, the Ministry of Justice published a consultation paper entitled Proposals for the Reform of Legal Aid in England and Wales. Following the subsequent public consultation exercise, the Ministry published a paper entitled Reform of Legal Aid in England and Wales: the Government Response in June 2011. The proposals in this June 2011 paper were then largely reflected in a Bill which was put before Parliament, and which, subject to amendments, was enacted as LASPO, a statute which was enacted on 1 May 2012. As its title suggests, LASPO is concerned with a number of different areas of the legal system.
This case is concerned with Part 1 of LASPO, which came into force on 1 April 2013, is entitled "Legal Aid", and contains 43 sections. Sections 1 to 12 are headed "Provision of legal aid". Sections 8 to 12 are concerned with civil legal services, and sections 13 to 20 with "Criminal legal aid". Sections 21 and 22 are concerned with "Financial resources", sections 23 to 26 with "Contributions and costs", and sections 27 to 30 with "Providers of services etc". Sections 31 to 43 are "Supplementary" provisions.
Section 1(1) of LASPO imposes on the Lord Chancellor a duty to "secure that legal aid is made available in accordance with this Part", and section 1(4) enables him to "do anything" to further those functions. Section 2(1) empowers him to make "such arrangements as [he] considers appropriate" to carry out those functions, and section 3 is concerned with "standards of service". Section 4(1) requires the Lord Chancellor to appoint a "Director of Legal Aid Casework", defined as "the Director". Section 8 defines "civil legal services" as the provision of legal advice and assistance as to the law, proceedings, disputes and enforcement other than in connection with criminal matters.
Section 9 of LASPO is entitled "General cases", and it 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 …
(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 Parts 2, 3 or 4 of the Schedule)."
Section 10 of LASPO deals with "Exceptional cases", in respect of which civil legal services are to be available even though they would not be available under section 9. It includes, in subsection (3), cases where the denial of civil legal services would be "a breach of … [an] individual's Convention rights … or … EU rights".
Section 11 of LASPO is entitled "Qualifying for civil legal aid". Section 11(1) requires the Director to determine whether an individual qualifies for civil legal services by reference to (a) his financial resources (as defined in section 21 and "regulations under that section"), and (b) criteria set out in regulations. Section 11(2) provides that, in setting the criteria under section 11(1)(b), the Lord Chancellor (a) "must consider the circumstances in which it is appropriate to make civil legal services available", and (b) "must, in particular, consider the extent to which the criteria ought to reflect the factors set out in subsection (3)". The ten factors set out in section 11(3) include (a) the likely cost and likely benefit of providing the services, (b) the availability of resources, (e) the nature and the seriousness of the case, (f) the availability of alternative services, (g) the prospects of success, (h) the conduct of the individual concerned "in connection with services made available under this Part", and (j) the public interest.
Section 41 of LASPO is headed "Orders, regulations and directions", and subsections (1), (2) and (3) are in these terms:
"(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, and
(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.
(3) Orders and regulations under this Part —
(a) may provide for a person to exercise a discretion in dealing with any matter,
(b) may make provision by reference to a document produced by any person, and
(c) may make consequential, supplementary, incidental, transitional or saving provision."
Section 41(6) provides that a statutory instrument containing an order made under any section mentioned in section 41(7) "may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament", and section 41(7) included, in para (a), "orders under section 9".
Schedule 1 to LASPO is headed "Civil Legal Services" and Part 1 sets out the "Services", which are referred to in section 9(1)(a). Over 40 categories are set out in Part 1 of Schedule 1, and almost all of them begin with the words "Civil legal services provided" either "to" or "in relation to". They include "care, supervision and protection of children" (para 1), "special educational needs" (para 2), and "abuse of an individual … when … a child or a vulnerable adult, but only where (a) the services are provided to the individual …" (para 3). The categories also include "appeals relating to welfare benefits" (para 8), "victims of domestic violence and family matters" (para 12), and "judicial review", save where such review will produce no benefit to the individual concerned (para 19). Other categories are "breach of Convention rights by a public authority" (para 22), certain specified immigration matters (paras 24–31), "loss of home" and "homelessness" (paras 33 and 34), "protection from harassment" (para 37), "in relation to a sexual offence, but only where (a) the services are provided to the victim of the offence …" (para 39). Also, "inquests" (para 41), "environmental pollution" (para 42), and "equality" (para 43). Some of these paragraphs are fairly detailed and include exclusions and definitions.
Part 2 of Schedule 1 is entitled "Excluded services", and it is introduced with the following words, "The services described in Part 1 of this Schedule do not include the services listed in this Part of this Schedule, except to the extent that Part 1 of this Schedule provides otherwise". Part 2 contains 18 paragraphs, and (with the exception of para 14) they all begin with the words "Civil legal services provided in relation to", and then refer to specific areas, including "personal injury or death" (para 1), "a claim in tort in respect of negligence" (para 2), "damage to property" (para 6), "a claim in tort in respect of breach of statutory duty" (para 8) and "a benefit, allowance, payment, credit or pension" under certain statutes (para 15). Paragraph 14 of Part 2 of Schedule 1 is "Civil legal services provided to an individual in relation to matters arising out of" establishing, carrying on, or terminating a business.
Part 3 of Schedule 1 is concerned with "Advocacy: exclusion and exceptions", and it sets out tribunals before which advocacy is within the Services covered by Part 1 of the Schedule. Part 4 of that Schedule is concerned with "Interpretation".
In April 2013, the Ministry of Justice issued a paper, Transforming Legal Aid, and subsequently carried out a public consultation exercise in connection with its proposals. In September 2013, the Ministry published its response to the results of that exercise, Transforming Legal Aid: Next Steps. In the September 2013 paper, the Ministry stated at para 132 that, subject to certain specified exceptions:
"[T]he Government has decided to proceed with the introduction of a residence test in civil legal aid so that only those who are:
• lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time the application for civil legal aid was made; and
• have resided lawfully in the UK, Crown Dependencies or British Overseas territories for a continuous period of at least...
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