UK Supreme Court rejects Lord Chancellor's attempt to limit legal aid availability

R (on the application of The Public Law Project) (Appellant) v Lord Chancellor (Respondent) [2016] UKSC 39

In the recent decision of R v Lord Chancellor [2016] UKSC 39, the UK Supreme Court has rejected an attempt by the Lord Chancellor to limit the availability of legal aid on the basis of citizenship and continuous residence in the UK, concluding this was outside the Lord Chancellor's power.

In April 2013, the UK Ministry for Justice issued Transforming Legal Aid: Delivering a more credible and efficient system – a consultation paper which, amongst other things, proposed reforms to the Legal Aid Sentencing and Punishment of Offenders Act 2012 (Act).  After publishing the paper, the Ministry carried out public consultation and published its response to the results of the exercise in September 2013 in Transforming Legal Aid: Next Steps.

The proposed reforms sought to introduce a residence test to the Act that would in effect restrict legal aid to those who:

  • were 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 12 months at any point in the past.

unless they fell into some narrow exceptions, being:

a)     a serving member of the armed forces and their families;

b)    asylum seekers; and

c)     in relation to the second bullet point, children under 12 months of age.

The Ministry later agreed to exclude certain classes of cases from ambit of the exclusion, namely: "categories of cases which broadly relate to an individual's liberty, where the individual is particularly vulnerable or where the case related to the protection of children."  However, despite the amendment, the Ministry stated:

The Government continues to believe that individuals should, in principle, have a strong connection to the UK in order to benefit from the civil legal aid scheme. We believe that a requirement to be lawfully resident at the time of applying for civil legal aid and to have been lawfully resident for 12 months in the past is a fair and appropriate way to demonstrate such a strong connection.

The Lord Chancellor put a draft order before parliament on 31 March 2014. The draft order stated that it was made pursuant to sections 9(2)(b), 41(1) and (b) and s41(3)(b) and (c) of Act.

Before the draft order had been laid before Parliament, the Public Law Project, an independent, national legal charity which aims to improve access to public law remedies for those whose access is restricted by poverty, discrimination or other similar barriers, applied to the High Court for a declaration that the order would be unlawful because:

a)     the draft order was ultra vires (i.e. outside the scope of power granted to the Lord Chancellor under the Act). As a matter of statutory interpretation, the power of the Lord Chancellor to make an order under section 9 of the Act was limited to the types of cases where legal aid would be available, not the personal characteristics of recipients, such as residence; and/or

b)    the order was unjustifiably discriminatory in its effect.

The Divisional Court held that the order was unlawful on both grounds, so the order was withdrawn from Parliament, and the Lord Chancellor appealed to the Court of Appeal against both conclusions.

The Court of Appeal held that the draft order was within the power of the Lord Chancellor, and whilst the order was discriminatory in effect, its discrimination could be justified. The Public Law Project then appealed to the Supreme Court.

In the Supreme Court, Lord Neuberger (with whom Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson agreed), noted that although the draft order was a statutory instrument that was subject to the affirmative resolution procedures, it was nevertheless subordinate legislation as it is not subject to the same scrutiny as Bills. Therefore, the proposed order had to be authorised by section 9(2)(b) or section 41 of the Act , being the sections of Act referred to in the draft order as authorising the order.

The Supreme Court found that:

The exclusion of a specific group of people from the right to receive civil legal services in relation to an issue, on the ground of personal circumstances or characteristics… which have nothing to do with the nature of the issue or services involved or the individual’s need, or ability to pay, for the services, is simply not within the scope of the power accorded to the Lord Chancellor by Section 9(2)(b) of [the Act] and nothing in section 41 undermines that contention. [29]

Further, section 9(2)(b) of the Act gave the Lord Chancellor the power to vary or omit services. The natural meaning of those words did not provide the Lord Chancellor with the power to "reduce the class of individuals who are entitled to receive those services".

The context of section 9(2)(b) supported their Honours' conclusion on the natural meaning because all of the existing paragraphs

are concerned with "Civil legal services provided in relation to" specified areas of litigation, whereas the new proposed para 19 will have nothing to do with any specified area of litigation at all. [31]

The decision of R (on the Application of the Public Law Project) is a significant step in securing the ongoing availability of legal aid in the UK.

The importance of the decision rests on the fundamental right of access to the courts, which is recognised in UK common law, Article 6(1) of the European Convention on Human Rights (ECHR), Article 47 of the the EU Charter of Fundamental Rights, and other international human rights treaties to which the UK is a party.

Access to legal advice for those with insufficient resources to enable access of the courts to be effective is also recognised as being implicit in the right of access to justice in both common law and by the ECHR.

While there is nothing preventing parliament from introducing a bill which gives to the Lord Chancellor the power to decide the personal characteristics that determine eligibility to receive legal aid, the effect of the decision is that should the Ministry wish to proceed with such plans, a bill will need to be introduced into parliament and be subjected to the full debate and scrutiny of the house.

The full text of the decision can be found here.

Melanie Nicol is a Law Graduate at Lander and Rogers

Ashlea Hawkins is a Lawyer at Lander and Rogers