R v Lord Chancellor

A statutory instrument, including one requiring affirmative parliamentary approval, is invalid if its effect or purpose exceeds the enabling statute. A Henry VIII power is construed under ordinary principles, but the court must ask whether the proposed exercise falls within the class of action contemplated by Parliament. Doubt should be resolved restrictively because delegated amendment of primary legislation is exceptional.

The power under section 9(2)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to vary or omit civil legal services did not authorise the exclusion of individuals by residence, a characteristic unrelated to the services, issue or need for assistance. Section 41 provided ancillary flexibility and did not enlarge that power substantively.

The Lord Chancellor proposed a residence test under which most applicants would qualify for civil legal aid only if lawfully resident within specified territories and previously resident for a continuous 12-month period. The proposal was to be implemented by a draft statutory instrument made principally under section 9(2)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Public Law Project sought a declaration that the proposed order would be ultra vires and unjustifiably discriminatory. The Divisional Court upheld both grounds: [2015] 1 WLR 251. The Court of Appeal allowed the Lord Chancellor's appeal, holding that the order was intra vires and that its discriminatory effect was justified: [2015] EWCA Civ 1193; [2016] 2 WLR 995.

On the appeal in R v Lord Chancellor, the central issue was whether the statutory power to vary or omit categories of civil legal services authorised the proposed exclusion of individuals by reference to residence.

1. Appeal allowed unanimously. Lord Neuberger delivered the judgment, with which Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson agreed. The proposed residence test was outside the Lord Chancellor's delegated legislative power and would be unlawful.

2. Subordinate legislation remains reviewable even when it is subject to the affirmative resolution procedure. A court must declare it invalid if its effect or purpose falls outside the legislative powers conferred by Parliament. Judicial control in such a case upholds parliamentary supremacy by preventing the Executive from exercising a power that Parliament did not confer.

3. A provision conferring power to make subordinate legislation is construed according to ordinary principles of statutory construction. Particular care is required where a Henry VIII power permits amendment of primary legislation. The court must determine whether the proposed exercise belongs to the class of action that Parliament contemplated when delegating the power. Because such delegation is exceptional and receives less parliamentary scrutiny than primary legislation, genuine doubt about its scope should be resolved restrictively. A clearly expressed power must nevertheless receive its proper meaning and must not be cut down artificially.

4. Section 9(2)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 authorised the Lord Chancellor to vary or omit services described in Part 1 of Schedule 1. Its natural meaning did not authorise the exclusion of a class of individuals by an unrelated personal characteristic such as residence. Section 9(1) itself distinguished between whether services fell within Schedule 1 and whether an individual qualified to receive them.

   The wider scheme confirmed that construction. The existing categories in Parts 1 and 2 of Schedule 1 were connected with particular legal issues or services. Section 11, rather than section 9, addressed the circumstances and characteristics relevant to individual qualification. Its criteria concerned financial need, cost, benefit, the nature of the case, alternative provision, prospects, conduct connected with the services and the public interest. They did not support a general residence criterion unrelated to the issue, services or need for assistance.

5. Section 41(2)(b), which permitted provision by reference to services supplied to a particular class of individual, was ancillary. It could facilitate limitations connected with the services concerned, but could not alter or enlarge the substantive nature of the section 9 power. The proposed residence test embodied a wholly different criterion from those contemplated by Part 1 of the Act and was therefore ultra vires.

6. Having reached that conclusion unanimously, the court did not determine whether the proposed test was also unlawfully discriminatory.

1. United Kingdom Supreme Court: The appeal in R v Lord Chancellor was allowed unanimously on the ultra vires ground: [2016] UKSC 39. The discrimination issue was not determined.
2. Court of Appeal: The Lord Chancellor's appeal was allowed. The proposed order was held to be intra vires and its discriminatory effect justified: [2015] EWCA Civ 1193; [2016] 2 WLR 995.
3. High Court, Divisional Court: The proposed order was declared unlawful because it was ultra vires and unjustifiably discriminatory: [2015] 1 WLR 251.