QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE COLLINS
MR JUSTICE JAY
| The Queen on the Application of the Public Law Project
|- and -
|The Secretary of State for Justice
The Office of the Children's Commissioner
Mr James Eadie QC, Mr Patrick Goodall and Mr David Lowe (instructed by the Treasury Solicitor) for the Defendant
Mr Paul Bowen QC, Mr Eric Metcalfe and Ms Catherine Meredith (instructed by Freshfields Bruckhaus Deringer LLP) for the Intervener
Hearing dates: 3rd-4th April, 2014
Crown Copyright ©
Lord Justice Moses:
The Statutory Scheme
"(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
(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).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)."
"(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.
(5) A statutory instrument containing an order or regulations listed in sub-section (7) [which includes orders under section 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."
"(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 sub-section (2) … is satisfied.
(2) This sub-section 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 sub-section (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 EU 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."
"We were told both that he did not have a passport and (by his family) that he did have one but that it had been lost. P did not know if he did have a passport. It was also not possible to confirm that he had been lawfully in the UK for a continuous period of 12 months at some point in the past …"
Ms Mackintosh gives other examples of incapacitated individuals who either would not have passed the residence test, or for whom it would have been impossible to prove that they did, and whose welfare would have continued to be seriously jeopardised in the absence of proceedings.
Section 41 falls within that part of the statute which is headed "Supplementary".
"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…"
It concluded that:-
"The 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."
"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."
This point was repeated by the Government in its memorandum dated 7 November 2011. The power was described by the Government in its response to the report of the House of Lords Select Committee on the Constitution in December 2011 as a focussed power to omit services where, for example, funding may no longer be necessary.
"The residence test is a proportionate means of achieving the legitimate aim set out in paragraph 6.3. By targeting funding at those with a strong connection to the UK, the residence test ensures that limited public resources are spent appropriately, (Transforming Legal Aid: Next Steps 5 September 2013)."
But the reference back to 6.3 is a reference back to a description of the purpose of targeting cases at those people who are most in need to which I have already referred. No one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need. Non-residents who fall within those cases identified as being of greatest need are not in any less need by reason of their status as non-residents. The purpose of introducing a residence test is not to identify those cases of the greatest need, but rather to restrict the distribution of legal aid to those who have the closest connection with the United Kingdom. But at this stage of the argument the question is not whether that is a legitimate purpose but whether it is a purpose which can be identified from the primary legislation. In short, does the purpose of the proposed secondary legislation widen or depart from the purposes to be identified from LASPO?
"2.11 The purpose of this proposal is to ensure that only individuals with a strong connection to the UK can claim civil legal aid at UK taxpayers' expense."
That connection is to be demonstrated by establishing a period of twelve months of previous lawful residence which demonstrates "a meaningful connection with the UK" (paragraph 114, page 85). This test has nothing to do with need or an order of priority of need. It is, entirely, focussed on reducing the cost of legal aid.
"Most right-minded people think it's wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?
And yes, you've guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals" (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).
"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 or economic grounds, and the Court will generally respect the legislature's policy choice unless it is manifestly without reasonable foundation" (Stec v UK at paragraph 52).
"Once it is conceded that people resident outside the UK are relevantly different and could be denied any pension at all, Parliament does not have to justify to the court the reasons why they are paid one sum rather than another. Generosity does not have to have a logical explanation. It is enough for the Secretary of State to say that, all things considered, Parliament considered the present system of payments to be a fair allocation of available resources " (at paragraph 26).
"it is hard to draw any genuine comparison with the position of pensioners living elsewhere, because of the range of economic and social variables which apply from country to country" (at paragraph 86).
"Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another." (at paragraph 68).
"Legal Aid will be a key element in ensuring access to justice in some cases, but in many cases justice can and should be afforded without the assistance of a lawyer funded by the taxpayer. Fundamental rights to access to justice…are protected by this Bill in relation to legal aid, through both the areas retained in scope in Schedule 1 to the Bill and through the exceptional funding provision".
i) the importance of the issue, e.g. cases involving the individual's life, and where the individual faces intervention from the state or seeks to hold the state to account.
ii) The litigant's ability to present their own case…where litigants bringing proceedings were likely to be from a predominantly physically or emotionally vulnerable group;
iii) The availability of alternative sources of funding; and
iv) The availability of other sources of resolution.
"every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection."
"Hence the European cases clearly establish that a member state may decide for itself how much it will spend upon its benefits system, or presumably upon its justice system, or indeed upon any area of social policy. But within that system, the choices it makes must be consistent with the principles of equal treatment and non-discrimination. A discriminatory rule or practice can only be justified by reference to a legitimate aim other than the simple saving of cost. No doubt it was because the Court of Justice foresaw that the ministry would seek to rely upon considerations of cost when the case returned to the national courts that it took care to reiterate that budgetary considerations cannot justify discrimination" (at paragraph 69).
Mr Justice Collins:
Mr Justice Jay:
|Paragraph in Part 1 Schedule 1||Service||Excluded by residence test, except R = reprieved|
|1||Care, supervision and protection of children||R|
|2||Special educational needs|
|3||Abuse of child or vulnerable adult||R (child)|
|4||Working with children and vulnerable adults|
|5||Mental health and mental capacity||R(detention)|
|6||Community care||R (Children Act 1989)|
|7||Facilities for disabled persons|
|8||Appeals relating to welfare benefits|
|8A||Appeals relating to council tax deduction schemes|
|9||High Court inherent jurisdiction: children and vulnerable adults||R (child)|
|10||Unlawful removal of children||R|
|11||Family homes and domestic violence||R|
|12||Victims of domestic violence and family matters||R|
|13||Protection of children and family matters||R|
|14||Mediation in family disputes||R|
|15||Children who are parties to family proceedings||R|
|17||EU and international agreements concerning children||R|
|18||EU and international agreements concerning maintenance||R|
|19||Judicial review||R (detention/
certification/certain asylum claims)
|21||Abuse of position or powers by public authority|
|22||Breach of Convention rights by public authority|
|23||Clinical negligence and severely disabled infants||R|
|24||Special Immigration Appeals Commission||R|
|26||Immigration: temporary admission||R|
|27||Immigration: residence etc. restrictions||R|
|28||Immigration: victims of domestic violence and ILR||R|
|29||Immigration: victims of domestic violence and residence cards||R|
|30||Immigration: right to enter and remain||R|
|31||Immigration: accommodation for asylum-seekers|
|32||Victims of trafficking in human beings||R|
|33||Loss of home|
|35||Risk to health or safety in rented home|
|37||Protection from harassment|
|40||Proceeds of crime|
|45||Terrorism prevention and investigation measures etc.|