R (on the application of The Public Law Project) (Appellant) v Lord Chancellor (Respondent)

Cite as:[2016] UKSC 39
Hand-down Date:July 13, 2016

Trinity Term [2016] UKSC 39 On appeal from: [2015] EWCA Civ 1193


R (on the application of The Public Law Project) (Appellant) v Lord Chancellor (Respondent) before

Lord Neuberger, President Lady Hale, Deputy President Lord Mance

Lord Reed Lord Carnwath Lord Hughes Lord Toulson JUDGMENT GIVEN ON 13 July 2016 Heard on 18 April 2016 Appellant Respondent Michael Fordham QC James Eadie QC Ben Jaffey Patrick Goodall QC Naina Patel Simon Pritchard Alison Pickup David Lowe (Instructed by Bindmans LLP) (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) LORD NEUBERGER: (with whom Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson agree)

  1. 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".

    Part 1 of LASPO

  2. 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.

  3. 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.

  4. 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.

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  5. 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)."

  6. 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".

  7. 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.

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  8. 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

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    (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".

  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...

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