R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39

The Supreme Court held that the Lord Chancellor's proposed statutory instrument introducing a residence test for civil legal aid was ultra vires the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The draft order exceeded the delegated powers in section 9(2)(b).

Facts

In September 2013, the Lord Chancellor proposed introducing a residence test for civil legal aid by means of delegated legislation amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The draft order would have meant that only individuals lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time of application, and who had been lawfully resident for a continuous period of at least 12 months at some point in the past, would be eligible for civil legal aid. Limited exceptions applied for serving armed forces personnel and their families, asylum seekers, and children under 12 months old. Certain categories of case (such as those concerning liberty, vulnerable individuals, and child protection) were also excluded from the test.

The Ministry of Justice described the proposal’s primary objective as bearing down on the cost of legal aid and promoting public confidence by targeting limited resources. The draft order was laid before Parliament on 31 March 2014, purportedly under sections 9(2)(b), 41(1)(a) and (b), 41(2)(a) and (b), and 41(3)(b) and (c) of LASPO.

The Public Law Project (PLP) challenged the lawfulness of the draft order. The Divisional Court held it was unlawful on grounds of being ultra vires and unjustifiably discriminatory. The Court of Appeal reversed that decision. PLP appealed to the Supreme Court.

Issues

The principal issue determined was whether the draft order was ultra vires – that is, outside the scope of the power granted to the Lord Chancellor by section 9(2)(b) of LASPO (read with section 41) to bring forward delegated legislation. A second issue, concerning whether the draft order was unjustifiably discriminatory, was not decided by the Court given its conclusion on the first issue.

Arguments

Appellant (PLP)

PLP argued that excluding a specific group of people from civil legal aid on the basis of personal circumstances or characteristics (lawful residence) which had nothing to do with the nature of the legal issue, the services involved, or the individual’s need or ability to pay, fell outside the scope of section 9(2)(b) of LASPO. Nothing in section 41 cured that defect.

Respondent (Lord Chancellor)

The Lord Chancellor contended that the draft order fell within the powers conferred by section 9(2)(b), supported by the ancillary powers in section 41, particularly section 41(2)(b), which permits provision by reference to services provided for a particular class of individual. The Lord Chancellor conceded that he could not have made the draft order under section 11 of LASPO.

Judgment

The Supreme Court unanimously allowed the appeal on the ultra vires ground. Lord Neuberger, giving the lead judgment, emphasised the constitutional context for reviewing subordinate legislation. He cited Lord Diplock in F Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295, 365:

even though [subordinate legislation] is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament, … I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the … Act of Parliament under which the order [was] purported to be made

The Court noted that this was a so-called “Henry VIII power” – a delegated power to amend primary legislation. Citing Craies on Legislation, Lord Neuberger observed:

as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.

He also relied on Lord Donaldson MR’s statement in McKiernon, approved in Britnell and Spath Holme:

Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.

Applying these principles, the Court held that the natural meaning of section 9(2)(b) – which permits the Lord Chancellor to “vary or omit services” – did not extend to reducing the class of individuals entitled to those services by reference to a personal characteristic (residence) unrelated to the services. The wider statutory context supported that conclusion:

First, each service in Parts 1 and 2 of Schedule 1 is linked to a specific type of legal issue, not to the personal characteristics of recipients. Secondly, section 9(1)(a) and (b) distinguishes between qualifying services and qualifying individuals, whereas section 9(2) refers only to services. Thirdly, section 11 of LASPO is the provision dealing with the personal characteristics of those qualifying for legal aid, and the criteria set out in section 11 all concern matters connected to need, cost, benefit or conduct relevant to the services – not unrelated personal characteristics such as residence. The Lord Chancellor’s concession that the draft order could not have been made under section 11 reinforced the conclusion that it could not be made under section 9 either.

The Court rejected the Court of Appeal’s reliance on section 41(2)(b), holding that section 41 grants only ancillary powers and cannot be used to alter the nature of, or substantively extend, the primary powers conferred by section 9. The broad aim of LASPO to reduce legal aid costs and to direct legal aid to deserving cases did not assist the Lord Chancellor: the purpose of Part 1 was to channel legal aid on the basis of the nature and importance of the issue, financial need, and the availability of alternatives – not by reference to residence-based criteria of an entirely different nature.

Having decided the appeal on the ultra vires ground, the Court considered it inappropriate to determine the discrimination issue.

Implications

The judgment reaffirms important constitutional principles concerning the scope and judicial control of delegated legislation, particularly Henry VIII powers. The decision underscores that courts will adopt a restrictive approach when interpreting the scope of powers to amend primary legislation by statutory instrument, and that the broader and more general the wording of such powers, the more cautious courts will be in determining whether a particular exercise was within Parliament’s contemplation.

The decision confirms that where a statute distinguishes between the services to be provided and the individuals entitled to receive them, a power to vary services cannot be used to exclude classes of individuals on grounds unconnected to those services. It also illustrates the courts’ role in upholding Parliamentary supremacy by preventing the Executive from making subordinate legislation outside the bounds of the statutory authority conferred upon it.

The case is particularly significant for legal aid policy, but its principles extend more widely to all attempted exercises of Henry VIII powers. Practitioners advising on the lawfulness of delegated legislation should pay close attention to the natural meaning of the empowering provision, the broader statutory scheme, and the principle that wide-ranging executive amendments of primary legislation are exceptional. The Court left the discrimination issue undecided, so the judgment does not establish principles concerning the substantive lawfulness of residence-based eligibility criteria under equality or human rights law.

Verdict: Appeal allowed. The Supreme Court unanimously held that the draft order introducing a residence test for civil legal aid was ultra vires the powers conferred on the Lord Chancellor by section 9(2)(b) of LASPO. The Court did not decide the discrimination issue.

Source: R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39