The proposed statutory instrument, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014, amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 by introducing a residence test, was unlawful as it was ultra vires and discriminatory.

The Divisional Court of the Queen’s Bench Division so held in allowing a claim for judicial review brought by the claimant, Public Law Project, against the decision of the Lord Chancellor to propose by statutory instrument, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014, amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a residence test. The effect of the amendment would be to exclude those who had a better than 50/50 chance of establishing a claim, the subject-matter of which was judged as having the highest priority need for legal assistance, but without the means to pay for it, on the ground that they lacked a sufficiently close connection with the country to whose laws they were subject. The Office of the Children’s Commissioner intervened.

MOSES LJ said that if the introduction of a residence test by secondary legislation exceeded the power to make delegated legislation conferred by the statute, it would be ineffective. The power to make delegated legislation had to be construed in the context of the statutory policy and aims such legislation was designed to promote. It was true that if the purpose of the 2012 Act was correctly identified as saving public funds and “seeking to further prioritise the expenditure of limited public resources in a time of real financial stringency”, then restricting legal aid not only to those with the greatest need but to those with the stronger connection to the United Kingdom, fell within the purpose of the 2012 Act. However, it was not possible to spell out of statute so broad and general a purpose. The criteria adopted by the statute were limited to criteria by which those in the greatest need of civil legal aid were identified. The fact that the delegated legislation would be subject to greater scrutiny than if it was introduced by the process of negative resolution was plainly relevant to consideration of whether the power conferred was wide enough. In the instant case, it was not enough to assert that the measure would be subject to scrutiny by Parliament, if, on a true construction of the statutory powers in their context, no power to introduce such a measure could be found. It followed that the instrument was ultra vires and unlawful. The 2012 Act did not permit such a criterion to be introduced by secondary legislation. It extended the scope and purpose of the statute and was outwith the power conferred by section 9 as supplemented by section 41.

The real question raised was whether, once the United Kingdom had chosen to provide legal assistance in cases where it was under no duty to do so, it might refuse such assistance to those who would otherwise qualify save for the fact that they did not meet a residence test. It was beyond question that the introduction of such a test was discriminatory. The test was more likely to be satisfied by a UK national than a national of another member state. The question resolved itself into whether the provision of legal assistance other than in fulfilment of a legal obligation was analogous to the payment of welfare benefits. The consequence of the residence test was to hamper a non-resident claimant, when compared to a resident claimant, in seeking to vindicate domestic rights which domestic public authorities were under a domestic legal obligation to secure. In such a context, when what was at stake was the protection which domestic law afforded to all who fell within its jurisdiction, the provision of legal assistance was far from analogous to the distribution of welfare benefits. Moreover, it was difficult to see how the rationale that legal assistance should be confined to those with a closer connection than non-residents, could possibly be applied to those who were subject to the laws of a state and sought no more than its protection. The mere saving of cost could not justify discrimination. It did not seem necessary to choose between the many different ways in which the claimant sought to advance the same argument, whether it was equal treatment under the common law, or a breach of article 14 read with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Residence was not a lawful ground for discriminating between those who would otherwise have been eligible for legal assistance by virtue of Schedule 1 to the 2012 Act.

COLLINS and JAY JJ agreed.