As the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in PLP v Secretary of State for Justice.
While we are all following the exciting live feeds on both the reshuffle and the progress of emergency legislation on surveillance, the freshly appointed Attorney General, Jeremy Wright MP, may want to cast his eyes to BAILLI.
The Administrative Court may this morning have handed him one of his first “to-do” list items. In – PLP v Secretary of State for Justice – a rare three judge Divisional Court has held that the Government’s proposal to introduce a residence test for legal aid – where all applicants will have to prove 12 months continuous lawful residence in the UK – is both ultra vires and discriminatory.
For those following the issue, the judgment is not a great surprise. Most organisations and individuals who responded to the Government’s consultation on the issue said as much, including JUSTICE. Yet, the Government chose to proceed, introducing the Draft Legal Aid Sentencing and Punishment of Offenders (Schedule 1) Order last month asking Parliament to approve the test for implementation in the Autumn. Then both cross-party Parliamentary Committees tasked with reviewing delegated legislation – the House of Lords Secondary Legislation Committee and the Joint Committee on Statutory Instruments (JCSI) – expressed doubt about the legality of the measures. It is rare for the JCSI to draw issues to the attention of MPs and Peers, yet they reported that the parliamentary materials showed little intention that Parliament intended the Government to have the power to introduce these restrictions under LASPO:
there is no indication at all in these passages or in any of the other Parliamentary materials identified by the Ministry of Justice that the Government proposed to exercise the power to create a general exception of the type now contemplated under which individuals who do not meet a residence test would be excluded from access to many of the types of civil legal services listed in Part 1 of Schedule 1. On the contrary, it appears to the Committee that the Government consistently presented the power as a focussed one needed to make consequential amendments to Schedule in light of changes to other legislation. (para 4.13)
During debate on the Order in the House of Commons, the opposition raised numerous questions about the legal basis for the Minister’s powers to act, the substantive impact of the measures and their workability. Yet, the Government pressed on. The Joint Committee on Human Rights reported concerns about the test itself, and then that the exceptions proposed were insufficient to protect the rights of children involved in litigation, and thus likely to violate the UN Convention on the Rights of the Child. Yet, last week, a coalition majority saw the Order approved in the House of Commons.
The final hurdle before the test becomes law is the approval of the House of Lords. The Lords will consider the measure in a matter of days, on 21 July 2014. The Government has been unpersuaded from their course by all others. Now the Divisional Court has spoken, the new Attorney General’s advice must be crucial in determining how (and whether) the Government will make its case in the Upper House.
Ultra vires and LASPO
Lord Justice Moses giving the leading judgment (Mr Justice Collins and Mr Justice Jay concurring) considers evidence given by both parties on the scope and intention of LASPO and the powers under which the Order is to be made – under Section 9(2)(b) and Section 41. Section 1 LASPO places a duty on the Secretary of State to ensure that legal aid is made available consistent with the provisions of the Act. Section 9, by extension, provides that such services as are specified in Schedule 1 are to be made available provided the individual concerned qualifies for legal aid. Section 9(2) of LASPO makes provision for adding to, varying or omitting services in Part 1 of Schedule 1. Section 41(1)(a) and (b) of LASPO empower the Minister to “make different provision for different cases, circumstances or areas” and to “make provision generally or only for specified cases, circumstances or areas”.
Importantly, Moses LJ concluded, referencing the materials published with LASPO and Ministerial statements on the limited scope of the enabling powers made under the Act, that these powers must be interpreted consistently with the purpose of LASPO:
Of course, it might have been possible to draft primary legislation … which has the broader ambition of cutting the cost of legal aid by permitting the Lord Chancellor to adopt criteria irrespective of need. But it is clear to me that the statute has neither such overriding ambition or purpose. It does precisely what the Government announced it was intended to do, namely to allocate civil legal aid to those in the greatest need. It would be startling if the statute contained the power to introduce secondary legislation with a wider purpose in precise contradiction to the public announcements of government that it was intended to allow services to be omitted if no longer needed, or it is no longer “appropriate” for them to be listed, a power it described as being drawn “as narrowly as possible”. On the contrary, the Lord Chancellor now asserts a power to introduce secondary legislation which excludes, from those adjudged to have the highest priority need, those whose need is just as great, but whose connection with the United Kingdom is weaker (para 45)
… the instrument is ultra vires and unlawful. I conclude that LASPO does not permit such a criterion to be introduced by secondary legislation. It extends the scope and purpose of the statute and is, accordingly, outwith the power conferred …. (para 50)
It is perhaps more interesting – and more important – that the Divisional Court has concluded that a residence test would amount to substantively unjustifiable discrimination, incompatible with the common law and the HRA 1998. The question before the Court was whether, once the UK has chosen to provide legal assistance in cases where it may be under no duty to do so, could it refuse such assistance to those who otherwise qualify save for the residence test?
That this case hinged on the discriminatory impact of these measures is important. Lord Justice Moses concluded that the common law right of access to a court – as demonstrated in cases such as Witham – would not provide a basis to challenge the Lord Chancellor’s decision on the test (para 57 – 59).
The Government did not dispute that the test would discriminate on the grounds of nationality. It was accepted that the test would more easily be satisfied by nationals of the UK. The question for the court to consider was whether the aim of restricting the support of public funds to those with a “close connection” to the UK was justifiable (see paras 60 – 62). The Court rejected the Lord Chancellor’s argument that legal aid should be reduced to “no more than a form of social welfare or benefit”. If that were the case, the long line of case law stretching from Stec v UK, on the broad discretion given to the administration in drawing the line on welfare would apply:
The consequence of the residence test is to hamper a non-resident claimant, when compared to a resident claimant, in seeking to vindicate domestic rights which domestic public authorities are under a domestic legal obligation to secure. The rationale behind the inclusion of cases within the priority areas, was, in many cases, the need to hold the state to account, check the exercise of executive power and to ensure that power is exercised responsibly…That need for legal assistance is no less in the case of a non-resident and arguably, in a foreign land speaking a foreign language, all the greater (Lord Bingham in A) cited Lord Scarman (in ex parte Khawaja  AC 74, 111-2):
“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.”
In such a context, when what is at stake is the protection which domestic law affords to all who fall within its jurisdiction, it seems to me that the provision of legal assistance is far from analogous to the distribution of welfare benefits… (paras 77- 78)
The Government advanced two justifications; cost saving and public confidence in the legal aid system. Lord Justice Moses rejects both. Budgetary considerations alone cannot justify discrimination, citing the judges’ pensions case (MOJ v O’Brien UKSC 6, at 69):
A discriminatory rule or practice can only be justified by reference to a legitimate aim other than the simple saving of cost.
The conclusions of the Court are particularly robust on the Government’s additional grounds of justification: “invoking public confidence amounts to little more than reliance on public prejudice”. Lord Justice Moses explained:
It is not clear to me how the need to engender public confidence could form part of the justification for discrimination. Feelings of hostility to the alien or foreigner are common, particularly in relation to the distribution of welfare benefits. But they surely form no part of any justification for discrimination amongst those who, apart from the fact that they are ‘foreign’, would be entitled to legal assistance. Certainly it is not possible to justify discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not. In my judgment, a residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction. (para 84)
The question for our new-to-the job legal officers and their Ministerial colleagues will be an interesting one, both legal and political.
This is a decision on a judicial review of the Government’s decision to introduce the Draft Order (it was lodged earlier in the year). Yet, logically, the Draft Order is based on the prior, now ultra vires, decision of the Minister to act. The Court is yet to decide on relief and it is unclear whether the Order will be permitted to stand. If it were quashed, the Draft Order would arguably fall away, with no further decision for Parliament to take.
However, if it stands, the decision in this case is yet likely to be subject to appeal. It would be open to the Government to ask the House of Lords to approve the Order, bring the test into force and take their chances that shortly after its passage the Court of Appeal takes a different view. The Lord Chancellor may wish to take the advice of the new Attorney General on the Government’s chances on appeal seriously.
This is extremely shaky ground on which to ask Parliament to legislate. If the High Court decision stands – and it is consistent with legal views expressed in Parliament and beyond – then after further litigation incurring further court time and cost to the public purse, it is highly likely that another bench will declare the Order ultra vires.
If the Government does put the Draft Order to a vote next week, it may find itself in a difficult position. Ministerial briefs may be being rewritten as you read. It is rare for the upper house to vote against secondary legislation. However, this is a case where both Parliament – working through its specialist scrutiny committees – and the High Court appear to be speaking with one voice. At a minimum, it is unlikely that the Minister has the power to make the Order proposed. If the Order is made – provided an applicant can secure funds to pursue judicial review – it is likely to be subject to early challenge. These circumstances should give succour to Peers that a substantive vote would be constitutionally proper; rather than substituting their views on substantive policy for that of the lower house, they would be acting to ensure that Ministers act within the scope of their delegated powers, preserving Parliaments’ original intention, as set out in LASPO and dissected in some detail by Lord Justice Moses.
So, for our new Attorney General – until yesterday, a junior Minister to the Lord Chancellor at the Ministry of Justice, answering questions on legal aid and the impact of the residence test – this may be a busy week.
Angela Patrick is Director of Human Rights at JUSTICE. JUSTICE has produced a detailed briefing for MPs and Peers on the residence test. Together with other NGOs, charities and others working in the justice system, they have produced a joint-statement on the Draft Order.
For further information on the work of JUSTICE see www.justice.org.uk or @JUSTICEhq.