Victory for legal aid campaigners

The Lord Chancellor acted beyond his powers in seeking to impose a civil legal aid residence test, the Supreme Court has unanimously ruled in an important decision on legislative authority.

In R (oao The Public Law Project) v Lord Chancellor [2016] UKSC 39, Lord Neuberger and six Justices held that the draft order giving effect to the test was ultra vires. Lord Neuberger’s judgment, published this week, sets out why the draft order lacked authority.

In his judgment, Lord Neuberger says: “In declaring subordinate legislation to be invalid in such a case, the court is upholding the supremacy of Parliament over the Executive.”

Later, he says: “The exclusion of individuals from the scope of most areas of civil legal aid on the ground that they do not satisfy the residence requirements of the proposed order involves a wholly different sort of criterion from those embodied in LASPO [the Legal Aid, Sentencing and Punishment of Offenders Act 2012] and articulated in the 2011 paper [a Ministry of Justice paper on LASPO].”

The decision was a major victory for legal aid campaigners. Jo Hickman, director of the Public Law Project (PLP) said the residence test’s “impact on access to justice would have been catastrophic”.

In April 2013, the Ministry of Justice proposed a residence test which would make civil legal aid available only to those who are lawfully resident in the UK for at least 12 months prior to their application for public funding. However, the Public Law Project (PLP) issued a legal challenge before the Lord Chancellor laid the draft order before Parliament, in March 2014.

The PLP argued the draft order was unlawful because it was ultra vires for the Lord Chancellor to bring forward secondary legislation under LASPO. The PLP further contended that the draft order was unjustifiably discriminatory in its effect and therefore in breach of both common law and the Human Rights Act 1998.

The Court of Appeal held the draft order was not ultra vires and that, while it was discriminatory, the discrimination could be justified. The Supreme Court accepted the Court of Appeal’s ruling on discrimination and indicated it did not need to hear argument on this.