SPM (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The court considered judicial review challenges to the arrangements for provision of detained duty advice (DDAS) and legal aid to women detained at Derwentside Immigration Removal Centre. Key legal principles included the common law right of effective access to justice as explained in UNISON and related authorities, the scope of the Lord Chancellor’s duties under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (notably sections 1 and 27), and the Equality Act 2010 obligations including the public sector equality duty in section 149 and the Schedule 3 qualifications for sex-separated services.

The Claimants alleged (1) unlawful detention because of inadequate in-person legal advice (principle of legality/access to justice); (2) sex discrimination by inferior provision at the women’s IRC contrary to the Equality Act 2010 (direct and indirect); and (3) failure to have due regard to the public sector equality duty. The court held that the Lord Chancellor may lawfully arrange for legal aid services to be delivered remotely under LASPO, that the interim remote arrangements at Derwentside for about six months during procurement did not create a real-world denial of access to justice, and that the Equality Act challenges failed because the decision to open an all-female facility was a lawful, proportionate exercise of statutory powers, supported by a detailed Equality Impact Assessment and justifications in Schedule 3. The court granted limited permission on one Article 14 ground but dismissed the substantive challenges on Grounds 1–4 and dismissed WRW’s claim on Grounds 1–3; remaining factual issues in SPM’s Ground 5 were adjourned for further hearing.

Background and parties. Derwentside IRC opened in late 2021 as a female-only centre replacing Yarl’s Wood. Two linked judicial review claims were brought: one by SPM, a detained South African national, and one by Women for Refugee Women (WRW). The claimants challenged the arrangements for in-person DDAS and legal aid at Derwentside and sought, among other relief, prohibition of detention of women at that site.

Nature of the application and relief sought. The claimants sought judicial review relief contending that the location and procurement outcome for DDAS made effective in-person legal advice practically unavailable, rendering detention ultra vires, discriminatory under the Equality Act 2010 and in breach of the public sector equality duty; SPM also advanced ECHR Article 14 complaints and a claim for false imprisonment and damages.

Issues framed by the court. The court focused on: (i) whether there was a common law impediment to access to justice (principle of legality) because in-person advice was unavailable (Ground 1); (ii) whether differential provision was direct or indirect sex discrimination under the Equality Act 2010 (Ground 2); (iii) whether the Secretary of State had due regard to the public sector equality duty (Ground 3); (iv) Article 14/ECHR discrimination aspects (Ground 4); and (v) factual issues about SPM’s detention including alleged failure to identify trafficking and consequent unlawful detention (Ground 5).

Court's reasoning and conclusions. The court accepted the modern authorities establishing a fundamental common law right of effective access to justice and that impediments created by the executive require clear statutory authority. It concluded, however, that LASPO (notably section 1 and section 27) gives the Lord Chancellor broad discretion to arrange legal aid services, including by telephone or video, and that the interim contingency arrangements (remote DDAS surgeries from January to June 2022) did not create a real risk of denial of effective access to justice in the real world. The court accepted the operational reasons for re-roling Yarl’s Wood and opening Derwentside, found that a detailed Equality Impact Assessment had been undertaken, and concluded that segregated female provision at Derwentside was justified under Schedule 3 and that the PSED had been discharged. The second tender produced contracts (from 1 July 2022) that required face-to-face DDAS; the court found no reliable evidence that those contractual obligations cannot be met. Permission was granted on SPM’s Article 14 ground but the substantive Article 14 claim failed because SPM had in practice been able to secure legal help and obtain interim protection and release; other factual elements of Ground 5 were adjourned for further proceedings.

First instance: The court dismissed the substantive judicial review claims. The court held that (i) the Lord Chancellor’s powers under LASPO permit provision of legal aid by remote means and the interim remote DDAS arrangements for six months did not create a real-world denial of access to justice; (ii) the decision to open and operate Derwentside as a female-only IRC, and the equality assessment underlying it, met the public sector equality duty and any differential treatment was justified under Schedule 3 to the Equality Act 2010; and (iii) although permission was granted on an Article 14 ground, SPM’s Article 14 claim failed on the facts because she obtained legal assistance and remedies and there was no unlawful sex-based denial of Convention rights; SPM’s remaining factual false imprisonment and trafficking-identification issues were adjourned for further hearing. WRW’s claim was dismissed on Grounds 1–3.