Legal aid – residence test

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

Statute – Validity – Ultra vires – Ministry of Justice consulting regarding reform of legal aid – Residence test being proposed for grant of civil legal aid

In November 2010, the Ministry of Justice published a consultation paper on the reform of legal aid in England and Wales. In June 2011, it published a paper entitled ‘Reform of Legal Aid in England and Wales: the Government Response’ (the June 2011 paper). The proposals in the paper were reflected in a bill that was enacted as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the 2012 act).

Section 9 of the act dealt with ‘general cases’ (see [5] of the judgment). Section 11 of the act dealt with qualifying for legal aid, and set out criteria that the Director of Legal Aid Casework was required to consider when deciding whether an individual qualified for civil legal services (see [7] of the judgment). Section 41 of the act covered ‘Orders, regulations and directions’, and allowed provision to be made for different cases (see [8] of the judgment). Section 41(2)(b) of the act permitted any order made under section 9(2)(b) to make provision by reference to services provided for a particular class of individual.

Schedule 1 to the act set out the services covered as ‘Civil Legal Services’, and Schedule 2 to the act dealt with services excluded from the rules in Schedule 1 (see [9] and [10] of the act). In September 2013, after further consultation, the MoJ published a paper called ‘Transforming Legal Aid’, which included a residence test in civil legal aid, so that, with certain exceptions, residence in the UK was required for the grant of civil legal aid.

The respondent lord chancellor decided to proceed with that proposal, and gave effect to that decision by laying a draft order before parliament. The appellant, PLP, commenced proceedings, claiming that, among other things, the draft order was ultra vires the power granted to the lord chancellor.

PLP submitted 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 (namely those not lawfully resident in the UK, Crown Dependencies or British Overseas Territories) which had nothing to do with the nature of the issue or services involved or the individual’s need, or ability to pay, for the services, was 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 of the act undermined that contention.

The lord chancellor conceded that he could not have made the draft order under section 11 of the act. Consideration was given to the purposes of the act and the June 2011 paper.

The appeal would be allowed.

Section 9(2)(b) of the act did not seek to vary or omit services: it sought to reduce the class of individuals who were entitled to receive those services by reference to a personal characteristic or circumstances unrelated to the services. The wider statutory context supported the conclusion indicated by the natural meaning of the words of section 9(2)(b) on their own.

First, section 9(2)(b) permitted a variation or omission of the services set out in Part 1 of Schedule 1 to the act by, among other things, modifying that part or Part 2 of that schedule. Each of the services identified in Part 1 and Part 2 was linked to a specific type of legal issue or claim, and had nothing to do with the personal circumstances or characteristics, and in particular the geographical residence, of the potential recipient of the services, other than those which related to the issue or the services concerned.

While it was true that some paragraphs of the draft order limited the right to receive legal services to one specific group, that did not undermine PLP’s case, as the objection to the draft order was that it excluded (subject to exceptions) a group of individuals on grounds that had nothing to do with the issue or services involved. That conclusion was supported by the wording of the subsections of section 9 of the act.

The fact that the lord chancellor had conceded that he could not have made the draft order under section 11 of the act tended in itself to provide additional support for PLP’s contention that the lord chancellor could not have made such an order under section 9 of the act, given that section 11 was concerned with prescribing the characteristics of those who ought to be able to qualify for civil legal services.

While it was true that section 41(2)(b) of the act permitted any order made under section 9(2)(b) to make provision by reference to services provided for a particular class of individual, that did not mean that the power to make orders under section 9(2)(b) was thereby extended to exclude a whole class of individuals from the scope of Part 1 of the act by reference to their residence. Section 41 had clearly been intended to grant ancillary power to those powers which were, as it were, primarily granted by provisions such as section 9.

It had not been intended to permit an alteration in the nature, or a substantive extension, of those powers. Section 41(2)(b) enabled the lord chancellor to make limitations such as those already found in paras 3(a) and 39(a) of Part 1 of Schedule 1 to the act. Further, looking at the issue more broadly, one of the main purposes of Part 1 of the act had been to reduce the availability of legal aid in connection with legal advice and representation in relation to civil claims, and that had also been the reason for the draft order.

It was also said that one of the aims of the provisions of sections 9 and 11 of, and Parts 1 and 2 of Schedule 1 to, the act was to direct legal aid to what were believed to be the individuals who, and types of claim which, were most deserving of public support, and that the draft order had that aim too.

However, although those contentions were correct in a broad sense, they involved expressing the aim of the legislation in far too general terms to justify rejecting PLP’s case. As was apparent from sections 9 and 11 themselves, and from the Ministry of Justice’s June 2011 paper, the purpose of Part 1 of the act had been, in very summary terms, to channel civil legal aid on the basis of the nature and importance of the issue, an individual’s need for financial support, the availability of other funding, and the availability of other forms of dispute resolution.

The exclusion of individuals from the scope of most areas of civil legal aid on the ground that they did not satisfy the residence requirements of the proposed order involved a wholly different sort of criterion from those embodied in the act and articulated in the June 2011 paper (see [30]-[37] of the judgment).

Accordingly, the appeal would be allowed on the ultra vires issue (see [38] of the judgment).

McKiernon v Chief Adjudication Officer (1989) Times, 1 November considered; R v Secretary of State for Social Security, ex p Britnell [1991] 2 All ER 726 considered; R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 1 All ER 195 considered.

Decision of Court of Appeal, Civil Division [2015] EWCA Civ 1193 reversed.

Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup (instructed by Bindmans LLP) for PLP; James Eadie QC, Patrick Goodall QC, Simon Pritchard and David Lowe (instructed by the Government Legal Department) for the lord chancellor; Paul Bowen QC, Eric Metcalfe and Catherine Meredith (instructed by Freshfields Bruckhaus Deringer LLP) for the Office of the Children’s Commissioner as intervener; Dinah Rose QC and Iain Steele (instructed by The Law Society) for The Law Society as intervener.