R (Public Law Project) v Secretary of State for Justice

The court held that the Lord Chancellor's proposed residence test, to be introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014, was ultra vires. The power to add, vary or omit services in Part 1 of Schedule 1 of LASPO must be exercised to promote the statutory purpose of targeting legal aid at cases of greatest priority need; it cannot be used to introduce a residence criterion which operates irrespective of need. The court further found that residence is not a lawful ground on which to discriminate between persons whose cases fall within Schedule 1, because the mere saving of cost or public confidence cannot justify discrimination in the provision of legal assistance in categories already identified by statute as meriting public funding.

Background and parties

The Public Law Project brought judicial review challenging the Lord Chancellor's proposal to introduce a residence test by secondary legislation which would exclude from Part 1 of Schedule 1 of LASPO persons who failed the test, save where they qualified under section 10. The Secretary of State defended the proposed order; the Office of the Children’s Commissioner intervened.

(i) Nature of the claim

• The claimant sought a declaration that the draft LASPO (Amendment of Schedule 1) Order 2014 was unlawful: (a) ultra vires the powers in sections 9 and 41 of LASPO; and (b) discriminatory and inconsistent with common law principles and Article 6 read with Article 14 of the Convention.

(ii) Issues framed

• Whether the statutory powers in LASPO permitted the Lord Chancellor to introduce a residence criterion by secondary legislation.
• Whether the residence test unlawfully discriminated between persons falling within the same Schedule 1 categories and, if so, whether such discrimination could be justified (including under Convention-derived principles).

(iii) Reasoning and conclusion

The court analysed the LASPO statutory scheme and concluded that Parliament confined the scope of publicly funded civil legal services to matters of the greatest need, identified by reference to subject-matter and vulnerable characteristics. The power in section 9, read with the supplementary provisions in section 41, was designed to adapt or update that list of priority services but not to redefine the statutory objective so as to impose a residence-based restriction unrelated to need. Introducing a residence test would change the statutory purpose by excluding from funded priority cases persons who, apart from residence, present the same high-need circumstances. Consequently the draft instrument exceeded the delegated power and was ultra vires.

The court also held that discriminating between claimants within the same priority categories on the basis of residence was not justified. The judges distinguished distribution of social welfare benefits (where a wide margin of appreciation exists) from the statutory decision to subsidise meritorious cases of the impecunious: once the State elects to fund particular priority legal services, it cannot, consistently with principles of equal treatment and access to justice, deny that assistance to non-residents solely to save cost or to promote public confidence. The claim therefore succeeded.

The claim is allowed. The court held the proposed residence test unlawful and ultra vires because LASPO’s delegated powers must be exercised to promote the statute’s object of targeting scarce legal aid at cases of greatest need; introducing residence as a criterion departs from that object. The court also held that residence is not a lawful ground to discriminate between persons within Schedule 1 priority categories and that cost-saving or public confidence does not justify such discrimination.