The Public Law Project, R (On the Application Of) v The Secretary of State for Justice the Office of the Children's Commissioner

The power to add, vary or omit civil legal services under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is confined by the Act’s purpose. It permits adjustment of services according to assessed priority of need, but does not authorise a new residence criterion that excludes persons whose cases fall within those priority categories.

Where the state voluntarily provides legal assistance in cases of equal and high priority, it must justify discriminatory differences in eligibility. Mere cost saving and the promotion of public confidence cannot justify discrimination based on residence. The proposed residence test was therefore both ultra vires and unlawful.

The Public Law Project challenged a proposed statutory instrument introducing a residence test for civil legal aid within Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The test would generally require lawful residence and either twelve months’ prior lawful residence, residence from birth, or satisfaction of an asylum-related condition.

The claimant argued that the Lord Chancellor lacked power to introduce the test by secondary legislation and that the discrimination was unlawful under the common law and article 6 read with article 14 of the Convention. The central issues were whether sections 9 and 41 authorised the amendment and whether residence could lawfully distinguish between otherwise eligible cases of equal priority.

1. Ultra vires. Section 9, read with section 41, identifies civil legal services which Parliament judged to involve the greatest priority of need. The power to add, vary or omit services enables the Lord Chancellor to adjust that scheme in accordance with the statutory purpose. It does not permit the introduction of a criterion unrelated to need.
2. Section 41 is supplementary. It supplies machinery and detail for the power in section 9, but cannot itself create a radically more extensive power. The reference to a particular class of individual is confined to cases where the class helps identify the nature or priority of the service, such as victims of domestic violence. It does not authorise excluding otherwise qualifying non-residents from every listed service.
3. The residence test pursued a different objective: restricting legal aid to persons with a strong connection to the United Kingdom and reducing expenditure. That purpose widened and departed from the purposes identifiable in LASPO. The proposed instrument was therefore unlawful and ineffective.
4. Discrimination. The proposed test was discriminatory. The relevant comparison was between persons whose cases fell within the same high-priority Schedule 1 categories and who were otherwise eligible, but differed in residence. The issue was not whether the state could withhold legal aid altogether in cases where it had no legal duty to provide it.
5. Legal assistance in these circumstances was not analogous to the distribution of welfare benefits. The scheme had already recognised the cases as involving high priority, importance, vulnerability, lack of alternative funding and sufficient merit. Within that scheme, mere saving of cost could not justify discriminatory treatment. Public confidence could not justify discrimination which relied on hostility towards foreign claimants.
6. The court did not need to choose between the common-law principle of equal treatment and article 14 read with article 6. The conclusion on discrimination was reached without relying on the proposed exceptional-funding application form. Collins J and Jay J agreed. The claim succeeded.