Public Law Project v The Lord Chancellor

The power to amend a statutory civil legal aid scheme by secondary legislation is not confined to needs-based criteria merely because the scheme’s original categories reflect need. The relevant powers permitted a residence condition rationally connected with efficient administration and saving public funds.

For discrimination concerning broad strategic economic or social policy, the default justification test is whether the measure is manifestly without reasonable foundation. More intensive review applies where the ground or context receives special legal protection. Residence is not such a ground, and funding legal representation is distinct from ensuring fair procedures and access to courts.

The Public Law Project challenged a proposed statutory instrument that would have inserted a residence test into Part 2 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The test would have restricted ordinary civil legal aid to persons satisfying specified residence requirements, subject to exceptions and the exceptional case regime.

The Divisional Court declared the proposed Order unlawful on the grounds that it was ultra vires and unjustifiably discriminatory: [2015] 1 WLR 251. The Lord Chancellor appealed. The central issues were whether the enabling powers authorised the residence test and, if so, whether the discrimination was justified under Articles 14 and 6 of the ECHR.

1. Appeal allowed. The declaration that the proposed Order would be unlawful could not stand.
2. The power in s.9(2)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, read with s.41, was not confined to criteria based on legal-aid need. Section 41(2)(b) permitted provision by reference to a particular class of individual. That included residence where the criterion was rationally material to the efficient administration of civil legal aid and the saving of public funds. The proposed residence test was therefore within the statutory powers.
3. The United Nations Convention on the Rights of the Child did not create an enforceable domestic right to legal aid in every proceeding concerning a child’s best interests. Article 37(d) concerned loss of liberty; Article 12 did not require legal aid; and Article 3(1) did not extend the entitlement. Any legal aid required by Convention or European Union law was addressed by the exceptional case regime in s.10. No new common-law right to legal aid existed.
4. The residence test was discriminatory within Article 14 read with Article 6 of the ECHR, but the legitimate aim was the saving of public expenditure. In broad or strategic economic and social policy cases, the default test was whether the measure was manifestly without reasonable foundation, following Stec v UK (Applications Nos. 65731/01 and 65900/01) and the domestic authorities. More intrusive review applied where the ground or context attracted the law’s special protection.
5. Residence was not a specially protected ground. Nor did the funding of legal representation engage the special protection applicable to fair procedures and access to courts. Legal representation funding was generally a state subsidy which the executive could regulate, unlike court fees: Witham v The Lord Chancellor [1998] QB 575. The residence test was not manifestly without reasonable foundation and was justified.

1. Court of Appeal (Civil Division) allowed the Lord Chancellor’s appeal and rejected the declaration of unlawfulness.
2. High Court, Administrative Court, Divisional Court declared the proposed statutory instrument unlawful on ultra vires and discrimination grounds: [2015] 1 WLR 251 .