Angela Patrick of JUSTICE has provided an excellent summary of this important ruling, which declared a proposed statutory instrument to be ultra vires the LASPO Act under which it was to have been made. The judgment is an interesting one, not least for some judicial fireworks in response to the Lord Chancellor’s recourse to the Daily Telegraph after the hearing, but before judgment was delivered.
But more of that after some thoughts on the discrimination ruling.
The order thus declared unlawful was the Draft Legal Aid Sentencing and Punishment of Offenders (Schedule 1) Order, due to go before the House of Lords on 21 July 2014.
The Divisional Court relied on two grounds.
The first was that there was nothing in LASPO which authorised the non-residence criterion to be introduced by secondary legislation. Hence the Order extends the scope and purpose of the statute, and is accordingly outside the powers in the Act.
The second, discrimination, has wider implications, though the Divisional Court sought to limit these. There could be no head-on challenge to restricting legal aid, had this been done in a non-discriminatory way, and so the common law right of access to a court provided no basis of challenge. That a state was under a duty to provide legal assistance in some circumstances was not in dispute, if only, as Moses LJ put it, as an aspect of its duty not to impede access to court. He noted that section 10 of LASPO was adopted to meet the UK’s obligation to provide legal assistance in those cases where a failure to do so would risk a breach of Convention or EU rights.
The Divisional Court identified the real question as being whether
once the United Kingdom has chosen to provide legal assistance in cases where it was under no duty to do so, it may refuse such assistance to those who would otherwise qualify save for the fact that they do not meet a residence test.
The principle that the state must not impede access to the courts did not assist determination of this issue. But the case was concerned with those cases where there is no legal right to legal aid but the Lord Chancellor has chosen to recognise those cases of highest priority need which, by reason of that need, merit legal assistance.
Angela Patrick has explained how the court robustly rejected the attempt to justify discrimination on grounds of nationality. Invoking public confidence amounts to little more than reliance on public prejudice, as the Court put it.
The Lord Chancellor was nothing if not upfront about his thoughts
I am treating people differently because they are from this country and established in this country or they are not” (26 November 2013).
One wonders in what other contexts a politician would come out with such a sentiment.
More was to come, as Moses LJ noted with this preamble:
Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins..
For the LC opined to the Daily Telegraph 16 days after the court hearing but before judgment
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…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 readers may have appreciated this knock-about, but not a great idea to get up the noses of the judges you are trying to persuade. After all, it does not matter who you are (Lefty lawyers not being high up in the LC’s pantheon) but, as Moses LJ pointed out, going for the man is not a good idea, if there is a ball to be played.
And for the few of you who did not recognise the footballing equivalent of the LC in my pic, it was Roy Keane.
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