ON APPEAL FROM THE HIGH COURT OF JUSTICE
Moses LJ, Collins and Jay JJ
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE CHRISTOPHER CLARKE
| Public Law Project
|- and -
|The Lord Chancellor
|The Office of the Children's Commissioner
Mr James Eadie QC, Mr P Goodall QC and Mr D Lowe (instructed by The Government Legal Department) for the The Lord Chancellor
Mr Paul Bowen QC, Mr E Metcalfe and Ms C Meredith (instructed by Freshfields Bruckhaus Deringer LLP for the OCC) (by written submissions)
Hearing dates: 14 & 15 October 2015
Crown Copyright ©
Lord Justice Laws:
"9(1) Civil legal services are to be available to an individual under this Part if –
(a) they are civil legal services described in Part 1 of Schedule 1, and the [Director of Legal Aid Casework] has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).
(2) The Lord Chancellor may by order –
(a) add services to Part 1 of Schedule 1, or
(b) vary or omit services described in that Part (whether by modifying that Part or Part 2, 3 or 4 of the Schedule).
10(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2)… is satisfied.
(2) This subsection is satisfied where the Director –
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable [European Union] rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be a breach."
S.10 is unaffected by the Order.
"(1) Orders, regulations and directions under this Part –
(a) may make different provision for different cases, circumstances or areas,
(b) may make provision generally or only for specified cases, circumstances or areas,
(c) may make provision having effect for a period specified or described in the order, regulations or direction.
(2) They may, in particular, make provision by reference to –
(a) services provided for the purposes of proceedings before a particular court, tribunal or other person,
(b) services provided for a particular class of individual, or
(c) services provided for individuals selected by reference to particular criteria or on a sampling basis…..
(4) Orders and regulations under this Part are to be made by statutory instrument…..
(6) A statutory instrument containing an order or regulations listed in subsection (7) [which includes orders under s.9]… may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament."
THE RESIDENCE TEST
"8. To satisfy the residence test, an individual would have to be lawfully resident in the UK, the Channel Islands, Isle of Man or a British Overseas Territory on the day the application for civil legal services was made, and (unless they were under 12 months old or a particular kind of asylum claimant or involved with the UK Armed Forces) have been so lawfully resident for a 12 month period at some time in the past (excluding absences of up to 30 days).
8. There were proposed exceptions to the test. Claimants pursuing certain types of proceedings were not required to satisfy the test (for example, domestic violence cases, and challenges to the lawfulness of detention). In any event, regardless of residence, a claimant who failed the residence test would have been entitled to apply for legal aid under the Exceptional Case Funding ("ECF") regime in s.10 of LASPO whose purpose is to ensure that all those who have a right to legal aid under the ECHR or EU law are able to obtain it."
THE ULTRA VIRES ISSUE
The Judgment of the Divisional Court
"Analysis of Part 1 of Schedule 1 shows that the statute seeks to confine civil legal services which the Lord Chancellor must secure to cases which are judged to be of the greatest need. Those cases are identified by reference not only to the circumstances which an individual might face but also by reference to personal characteristics or attributes, for example, children or those suffering from mental ill health. But whether defined by reference to their status or by reference to their circumstances, Part 1 of Schedule 1 seeks to identify those individuals and their circumstances having the greatest need for civil legal services. Leaving aside questions of financial resources and merits, no example can be found within the primary legislation of a distinction drawn between those entitled to civil legal services and those who are not on grounds other than assessment of need. The purpose lying behind the identification of services in Part 1 of Schedule 1 is to identify need. Thus, Parliament has chosen to exercise a judgment according to the criteria of need and not on any other basis."
"to bear down on the cost of legal aid, ensuring that every aspect of expenditure is justified and that we are getting the best deal for the taxpayer. Unless the legal aid scheme is targeted at the persons and cases where funding is most needed, it will not command public confidence or be credible…the reforms seek to promote public confidence in the system by ensuring limited public resources are targeted at those cases which justify it and those people who need it…"
The Equality Statement concluded that "[t]he primary responsibility of the MoJ in administering the legal aid system must be to provide fair and effective legal aid to those clients most in need." Moses LJ continued:
"40 The statutory provisions, read as a whole, demonstrate that that which the Lord Chancellor had publicly and repeatedly avowed, was to be achieved by a process whereby services were identified according to his assessment of where civil legal aid was most needed. No other criterion emerges from analysis of the statutory provisions. The power to add, vary or omit services under s.9 as supplemented by s.41 is to serve and promote the object of the statute. The secondary legislation provides an opportunity for the Lord Chancellor to add, vary or omit those cases when, from time to time, he judges that a greater need has arisen or a lesser need has emerged for distribution of civil legal aid. The power cannot be construed in a way which widens the purposes of the Act or departs from or varies its primary objective…"
"49 Section 41 is, as the heading to that congeries of sections heralds, supplementary. Supplementary means what it says: it is added to the power in s.9 to fill in details or machinery for that which the Act, and in particular s.9(2), does not itself provide. It enables that which the Act empowers to be effective. But s.41 cannot by itself create a new and radically more extensive set of powers additional to those contained in s.9(2)… The essential power conferred is to add, vary or omit services as identified in Part 1 of Schedule 1. The introduction of the secondary legislation restricting the provision of those services to residents maintains and preserves such services as the Lord Chancellor considers demonstrate the greatest need, but merely deprives non-residents of the opportunity to take advantage of them. It is true that by way of supplementary provision services may be added, varied or omitted by reference to a particular class of individual, but that is only because the nature of the service may itself be identified by reference to a particular class of individual… [T]he identification of a particular class of person is merely designed to identify those with a need judged to have priority."
The Lord Chancellor's Case
"The power extends to modifying any Part of Schedule 1. The power will allow for services to be omitted from Schedule 1 if they are no longer needed, or it is no longer appropriate for them to be listed. For example, if particular court proceedings are moved to a tribunal, it may cease to be appropriate to provide funding for advocacy for those proceedings and so an amendment to Part 3 of Schedule 1 would be needed. The power can also be used to add new exceptions listed in Part 1. It is appropriate for there to be a limited power to amend Schedule 1 to allow it to be kept up to date. As this is a power to amend primary legislation, it is drawn as narrowly as possible."
Parliamentary Privilege/Article 9 of the Bill of Rights
"LASPO was enacted in order to limit the grant of legal aid with a view to making savings in the cost to public funds."
And paragraph 6 of the Explanatory Notes to LASPO identifies the purpose of this part of the statute as the fulfilment of the government's aim "to carry out a fundamental review of legal aid to make it work more efficiently". The reality is that need and cost are not strange bedfellows. It must be obvious that in circumstances of financial stringency choices as to the disposition of public funds in a particular area will focus on need for the service in question. Thus it is not merely unsurprising that Part 1 of Schedule 1 lists categories where the need for civil legal aid is pressing; it is, in effect, inevitable. But that necessity does not tell us that the only criterion by which the Lord Chancellor may limit or restrict the provision of civil legal aid is the perceived need of its potential recipients.
The Office of the Children's Commissioner
THE DISCRIMINATION ISSUE
"In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice."
I do not, with respect, share this opinion. I think that reasonable people may disagree about the merits of the residence test, and the Lord Chancellor's defence of it. This brings me to the discrimination issue.
"Judicial restraint in such cases is underpinned by the separation of powers which means that the Lord Chancellor is entitled to a built-in latitude (or margin of discretion) in this decision making, given the significant expenditure of public funding at stake and the need to balance the wider public interest."
See also Howard League for Penal Reform v The Lord Chancellor  EWHC Admin 709 at paragraph 52. More generally, the same imperative may be found in the well established "manifestly without reasonable foundation" test which is applied in the context of social security benefits. It was deployed by the Strasbourg court in Stec v UK (Applications Nos. 65731/01 and 65900/01), which concerned the administration of an earnings-related State benefit:
"Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social and economic grounds, and the Court will generally respect the legislature's policy choice unless it is manifestly without reasonable foundation." (paragraph 52)
"There is by now a substantial body of jurisprudence to show that discriminatory selection in relation to the distribution of benefits, such as housing benefit capped in relation to large lone parent families (R (JS) v SSWP)  PTSR 23,  EWCA Civ 156) or the provision of health care to non- residents (R (A) v Secretary of State for Health  1 WLR 279), was a matter for the judgment of Parliament and the Government (see also Baroness Hale's adoption of the Stec approach in Humphreys v Revenue and Customs Commissioners  UKSC 18,  1 WLR 1545)."
Baroness Hale in the Humphreys case made it plain that the "manifestly without reasonable foundation" test was now anchored in our domestic law. At paragraph 18 she stated:
"The same test was applied by Lord Neuberger (with whom Lord Hope, Lord Walker and Lord Rodger agreed) in R (RJM) v Secretary of State for Work and Pensions  UKHL 63,  1 AC 311, which concerned the denial of income support disability premium to rough sleepers. Having quoted para 52 of Stec he observed, at para 56, that this was 'an area where the court should be very slow to substitute its view for that of the executive, especially as the discrimination is not on one of the express, or primary grounds'. He went on to say that it was not possible to characterise the views taken by the executive as 'unreasonable'…"
Cases under the Law's Special Protection
"The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy."
"15 Whether cases are sufficiently different is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the 14th Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification: Massachusetts Board of Retirement v Murgia (1976) 438 US 285.
16 There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, eg that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (eg on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government."
– is not a characteristic, such as sex or race, which is specially protected by the law on the footing I have described. Is there a more promising line of argument based not on the grounds of discrimination but on the context of the case? Mr Fordham submits there is: the context is access to justice.
"26. Mr Richards submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by taxpayers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyers' fees to conduct litigation is a subsidy by the State which in general is well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers."
If I may say so that still seems to me to be correct and I am not aware that it has been contradicted.
Conclusion on the Discrimination Issue
Lord Justice Kitchin:
Lord Justice Christopher Clarke: