Case Comment: R (Public Law Project) v Lord Chancellor  UKSC 39
29 Friday Jul 2016
Judgment has now been handed down in R (Public Law Project) v Lord Chancellor  UKSC 39, in which Regulations made under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) were challenged. The Court indicated at the end of the oral hearing of the appeal on 18 April of this year that the appeal had succeeded but reserved its reasoning.
The Act itself was highly controversial: it fundamentally shifted the approach to entitlement to legal aid. Prior to its enactment all matters were presumptively treated as within the scope of legal aid, except where specifically excluded. LASPO changed this so that no matters were treated as within scope, except where specifically included. Its purpose was to restrict access to legal aid as part of the broader ‘austerity’ agenda. It was hoped that its effect would be to cut £350million from the legal aid budget. The National Audit Office has since reported that there were 28% fewer civil legal aid representation certificates issued, and a drop in civil legal “help” (advice and assistance) matters funded of 70%, in 2013-14 as compared to 2012-13. Regulations made under LASPO have sought to further reduce entitlement and reduce expenditure – and as the courts have found, not always lawfully.
In a case brought by Rights of Women determined in February this year, the Court of Appeal concluded that Regulations made under LASPO requiring victims of domestic violence to satisfy onerous evidential requirements directed at establishing the necessary victimhood as a condition of a grant of legal aid, were contrary to the purpose of LASPO and unlawful (R (Rights of Women) v Secretary of State for Justice  EWCA Civ 91). In a nutshell, the Court of Appeal concluded that the purpose of LASPO (among other things) was to make legal aid services available to certain categories of case, including for victims of domestic violence proceedings, subject as always to means and the merits of any proposed litigation. According to the Court of Appeal, while the Act contemplated regulations being made for the purpose of making determinations as to entitlement under LASPO, they could not be such as to frustrate the very purpose of the Act. This, the Court of Appeal found, the Regulations did – since the (temporally prescribed) evidential requirements would in many cases deprive those LASPO intended to benefit from entitlement.
A similar conclusion was reached in March of last year by the High Court in a claim brought by a number of firms of solicitors (R (Ben Hoare Bell and Ors) v Lord Chancellor  EWHC 523 (Admin)) who contended that regulations made under LASPO introducing the “no permission, no fee” arrangement in applications for judicial review were significantly outwith the purpose of LASPO since their application in some situations could not in any sense incentivise providers to a “sharper focus” (as was said to be their purpose).
The impugned Regulations in Rights of Women have been declared invalid to the extent that they have been found inconsistent with the purpose of LASPO and Regulations have been introduced to address the “no permission, no fee” vice. In the Public Law Project challenge the courts had to look for the third time at the question whether regulations made under LASPO, though on this occasion still in draft form, were lawful. This time the Regulations exempted from entitlement to legal aid persons who failed a residence rest; namely, that they must be lawfully resident in the UK and at some point must have been so resident for a continuous period of 12 months. The Lord Chancellor contended that LASPO permitted him to make lawful regulations to that effect because it gave him (as the Lord Chancellor then was) power to “vary or omit” services that could otherwise be provided by way of legal aid. The Supreme Court concluded otherwise, holding that the exclusion of a specific group of people from the right to receive legal services in relation to an issue, on the ground of personal circumstances or characteristics – like residence –that have nothing to do with the issue or services themselves, was not permissible. According to the supreme Court, the draft Regulations did not seek to vary or omit services but instead sought to reduce the class of individuals who were entitled to receive those services. The judgment came as no surprise. As mentioned, the Court’s decision was announced at the end of the hearing in April 2016. What perhaps is surprising is the fact that it is the third occasion on which the Lord Chancellor has had to be instructed by the courts as to the limits of his powers under LASPO. Let’s hope the new one makes a better job of it.
Lord Justice Longmore reminded us in Rights of Women that, “legal aid is one of the hallmarks of a civilised society”. It might be said that if it were not for the courts and some very charitable litigants, we might well be looking not a little uncivilised.