Family Law

The Supreme Court – a seven-justice court consisting of Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – took the unusual, perhaps unique, step of announcing halfway through a hearing on 18 April 2016 that it will allow an appeal, with reasons to follow.

The appeal was by Public Law Project (PLP) as to the vires of the Lord Chancellor in imposing a residence test for applications for legal aid. It was the first time that the Supreme Court had considered Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). Their detailed reasons - as explained on the Supreme Court website – are awaited.

The case reached the Supreme Court after a successful judicial review challenge in a representative application by Public Law Project as R (ota The Public Law Project) v The Secretary of State for Justice (Office of the Children's Commissioner intervening) [2014] EWHC 2365 (Admin) (judgment of 15 July 2014) before the Queen's Bench Divisional Court. That decision was revered in the Court of Appeal: Public Law Project v The Lord Chancellor [2015] EWCA Civ 1193.

Laws LJ decribed the residence test, introduced by delegated legislation (ie by Order), by referring to the Lord Chancellor's skeleton argument at paras [8] and [9]:

'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).

9. There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the tear (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.'

Laws LJ dealt with the arguments of PLP under two heads: (1) that the Order was outside the Lord Chancellor's powers (ultra vires) under LASPO 2012; and (2) that it was discriminatory.

He dealt with the vires issue by stressing at para [21] that LASPO 2012 was intended to limit the grant of legal aid and to make savings. The government's explanatory notes expressed the aim of the Act as 'to carry out a fundamental review of legal aid to make it work more efficiently'. So he said:

'21. ... The reality is that need and cost are not strange bedfellows. It must be obvious that in circumstances of financial stringency choices as to the disposition of public funds in a particular area will focus on need for the services in question. Thus it is not merely unsurprisingly that Part I of Schedule 1 lists categories where the need for civil legal aid is pressing; it is, in effect, inevitable. But that necessity does not tell us that the only criterion by which the Lord Chancellor may limit or restrict the provision of civil legal aid is the perceived need of its potential recipients.'

He went on:

'23. Overall, in my judgment, the terms of the statute do not indicate that its purpose is to be read as "narrowly" as Mr Fordham [counsel for PLP] would have it. In particular, the unsurprising (I think inevitable) fact that the contents in [LASPO 2012] s 41(2)(b) [which permits services of a particular category of individual] to "a particular class of individual" is on its true construction limited by reference to the needs of the class' members. To my mind it is clearly wide enough to encompass characteristics of a class which to a rational mind are material to the heightened efficiency of civil legal aid: an objective which plainly includes the saving of public funds. The residence test is well within the scope of such a strategy, and likewise, as it seems to me, within the scope of changes permitted to the Lord Chancellor by s 9(2)(b) read (in particular) with s 41(2)(b).'

The Supreme Court proceeded under the same two heads as had the Court of Appeal, but found it necessary only to deal with the appeal under the vires heading. For reasons yet to be set out, all seven judges found that the Lord Chancellor did not have power under LASPO 2012 to make the Order. If the government wishes to introduce the residence test it must do so not by delegated legislation, but by an Act of Parliament. The Supreme Court answer to Laws LJ (especially at his paras [21] and [23]) is awaited.

Post-script

The order now struck down may be held to be an exercise of so-called 'Henry VIII powers' by the Lord Chancellor. For recent comments on these powers, see the Lord Judge speech 'Ceding Power to the Executive: the Resurrection of Henry VIII', and Professor Mark Elliot's blog on the subject.

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You can follow David Burrows on Twitter: @dbfamilylaw