Legal aid practice and procedure update:
residence test outside scope of Lord Chancellor’s power
Simon Pugh comments on R (Public Law Project) v Lord Chancellor [2016] UKSC 39.
About the author
Simon Pugh is a nonpractising solicitor and worked formerly in high street practice and for Shelter, the housing charity. He is co-editor , with Vicky Ling, of LAG Legal Aid Handbook 2015/16.
Facts: The Supreme Court considered whether the Lord Chancellor had power to introduce a ‘residence test’ for legal aid by statutory instrument. The test would remove entitlement to civil legal aid (with certain exceptions) from anyone who could not show 12 months’ lawful residence in the UK or overseas territories before their application. The draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 was challenged on the grounds that it was outside the powers granted by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and discriminatory. The High Court agreed; however, the Court of Appeal found that it was not outside the statutory powers and that the discrimination was justified. Public Law Project appealed to the Supreme Court.
Decision: In a very unusual development, the seven Justices indicated, at the end of the first day of the hearing, that they intended unanimously to allow the appeal on ultra vires. As a result, they did not hear argument on the discrimination point. Full judgment was reserved and has now been given by Lord Neuberger.
He said that LASPO Act s9 allows the Lord Chancellor to add, vary or omit any of the services provided for in Schedule 1 of the Act, which lists the types of proceedings for which legal aid is available. This is a ‘Henry VIII’ power, ie, one which allows a minister to amend primary legislation by statutory instrument, and so a restrictive approach to interpretation must be taken. Both the natural meaning of the particular words used in the LASPO Act and the wider context indicated that, in granting the power, parliament intended the Lord Chancellor to be able to add, vary or omit services provided, that is, the types of proceedings covered, but not add, vary or omit classes of persons entitled to receive those services.
Where the Schedule does limit entitlement to classes of persons, it does so by reference to the type of proceedings, or a characteristic of the person relating to the proceedings (for example, making legal aid available to victims, but not perpetrators, of domestic violence). The proposed residence test would restrict services for reasons that have nothing to do with the type of litigation at issue, namely, the geographical location and immigration status of the applicant and, as such, it was outside the powers granted to the Lord Chancellor.
Comment: Lord Neuberger’s judgment is a short and clearly reasoned exposition of the principles of statutory interpretation especially as regards ‘Henry VIII’ clauses, and of interest for that reason alone.
It is now clear that the residence test cannot be introduced by statutory instrument. The former Prime Minister David Cameron supported the test as a response to the Iraq armed forces cases. It remains to be seen whether Prime Minister Theresa May and Lord Chancellor Elizabeth Truss take the same view or whether they now have other legislative priorities.
If primary legislation is forthcoming, there are hints of the arguments that lie ahead: the discrimination point is very much alive, and Lord Neuberger made pointed reference to the interpretative principle that there is a strong presumption that an Act applies equally to all within its territory.