By sections 1 and 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Lord Chancellor was obliged to make legal aid available for civil legal services described in Part I of Schedule I to the Act. The cases set out in Part I of Schedule I were not ones in which the United Kingdom was obliged to provide legal assistance, which were provided for elsewhere in the Act. Purporting to exercise his power under section 9(2)(b) to omit services described in Part I, a power which was supplemented by section 41 of the Act, the Lord Chancellor proposed to amend Schedule I by statutory instrument so as to provide that those who failed a residence test would, subject to exceptions, be removed from the scope of Part I. The Divisional Court of the Queen’s Bench Division allowed the claimant’s claim for judicial review of the proposal, holding that the proposal was both (i) ultra vires and (ii) unlawfully discriminatory, in breach of common law and article 6 read with article 14 of the Convention for the Protection of Human rights and Fundamental Freedoms. The Court of Appeal allowed the Lord Chancellor’s appeal and held that the Lord Chancellor had acted within his powers under section 9(2) as supplemented by section 41 since the proposed residence test was well within the scope of the objective of saving public funds and, although the test was discriminatory, it served the legitimate aim of saving public expenditure.
On appeal by the claimant —
Held, appeal allowed. In order to uphold the supremacy of Parliament over the Executive subordinate legislation would be declared invalid if it had an effect or was made for a purpose which was ultra vires the statutory power pursuant to which it was purportedly made. The purpose of Part 1 of the Act was 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 Lord Chancellor’s proposed amendments excluded a specific group of people from the scope of most areas of civil legal aid on the ground that they did not satisfy residence requirements, and that involved a wholly different sort of criterion from those embodied in the Act. The power accorded to the Lord Chancellor under section 9(2)(b) was to “vary or omit services” whereas the proposed amendments sought to reduce the class of individuals who were entitled to receive those services by reference to a personal characteristic or circumstance unrelated to the services. That therefore the Lord Chancellor had acted ultra vires the power conferred by the Act in making the proposed amendments to Schedule 1..
Decision of the Court of Appeal [2015] EWCA Civ 1193; [2016] 2 WLR 995 reversed.
Michael Fordham QC, Ben Jaffey, Nina Patel and Alison Pickup (instructed by Bindmans LLP) for the claimant.
James Eadie QC Patrick Goodall QC, David Lowe and Simon Pritchard (instructed by the Treasury Solicitor) 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 intervening by written submissions only.
Dinah Rose QC and Iain Steel (instructed by the Law Society) for the Law Society intervening by written submissions only.