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On appeal from: [2015] EWCA Civ 1193

The Supreme Court has unanimously allowed the appeal of the Public Law Project, in a case that considered the legality of attempts by the Lord Chancellor to introduce a residence test for civil legal aid by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It made the decision based on the ultra vires argument, and as such, indicated it did not need to hear arguments on the discrimination issue.

S 9(1) of the 2012 Act provides that civil legal services are to be available to an individual if they are services described in Sch 1, Pt 1 to the Act, and where the Director of Legal Aid Casework has determined that the individual qualifies. However, s 9(2) gives the Lord Chancellor power to add to and vary or omit the services described in Sch 1.

Using this power, the Lord Chancellor decided to proceed with a Ministry of Justice proposal to introduce a residence test so that only those who were lawfully resident in the UK for a continuous period of at least 12 months at any point in the past could be eligible for civil legal aid.

Prior to the draft order being laid before Parliament, the Public Law Project applied for a declaration that it was unlawful on the basis that it was ultra vires the scope of powers granted to the Lord Chancellor by the 2012 Act, and unjustifiably discriminatory.

The Divisional Court agreed that the draft order was unlawful, but the Court of Appeal allowed the appeal, finding that the draft order was intra vires and, while discriminatory, was not unjustifiably so.

Lord Neuberger gave the only judgment.

The Court accepted the argument that it was not within the scope of s 9(2)(b) of the 2012 Act to exclude a specific group of people from accessing legal aid based on their personal circumstances or characteristics that have nothing to do with the nature of the services or the individual’s need or ability to pay. While the Lord Chancellor could vary or omit the services for which legal aid could be available, there was no power to reduce the class of individuals who were entitled to receive legal aid.

The Court distinguished s 11 of the Act, which dealt with the eligibility of individuals for legal services, and s 9, which clearly was concerned with the particular services themselves. It formed the view that Parliament had not intended s 9 to be used to vary the eligibility of individuals.

For judgment, please download: [2016] UKSC 39
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court website (18 Apr 2016 morning session), (18 Apr 2016 afternoon session).