R (on the application of the Public Law Project) v Secretary of State for Justice: Queen's Bench Division, Divisional Court: 15 July 2014
Residence test - Defendant secretary of state proposing to introduce residence test for cases most in need of public funding for legal assistance - Claimant issuing judicial review proceedings
The secretary of state proposed, by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 (the statutory instrument), to introduce a residence test for cases most in need of public funding, under Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the 2012 act). That did not include cases in respect of which the UK was obliged to provide legal assistance, which fell within section 10 of the 2012 act.
The effect of the amendment would be to exclude those who had a better than 50% chance of establishing a claim, the subject-matter of which was judged as having the highest priority need for legal assistance, but without the means to pay for it, on the grounds that they lacked a sufficiently close connection with the country to whose laws they were subject. The claimant issued judicial review proceedings.
The claimant contended that the proposed amendment was unlawful on the grounds that: (i) the act conferred no power to introduce the criterion of residence and, alternatively, if it was lawful to introduce such criterion, it had to be done by primary legislation; and (ii) such a discriminatory provision was contrary to common law or breached article 6 of the European Convention on Human Rights, read with article 14 of the Convention.
The secretary of state contended that: (i) the true purpose of the act was to save public funds and to seek to further prioritise the expenditure of limited public resources in a time of real financial stringency; and (ii) the fact that the statutory instrument could only be made by affirmative resolution rebutted any suggestion that he was seeking to introduce a discriminatory measure without drawing attention to it, without the opportunity for parliamentary examination and through a statutory back-door.
With respect to discrimination, the secretary of state founded his defence on the proposition that legal assistance, in those cases where the law did not impose a duty to provide it under section 10 of the act, was no more than a form of social welfare or benefit. Sections 9 and 41 of the act were considered. The Office of the Children's Commissioner intervened.
The application would be allowed.
(1) If the introduction of a residence test by secondary legislation exceeded the power to make delegated legislation conferred by the statute, it would be ineffective. The power to make delegated legislation had to be construed in the context of the statutory policy and aims such legislation was designed to promote (see  of the judgment).
It was true that, if the purpose of the 2012 act was correctly identified by the secretary of state, then restricting legal aid, not only to those with the greatest need, but to those with the stronger connection to the UK, fell within the purpose of the 2012 act. However, it was not possible to spell out of the act so broad and general a purpose. The criteria adopted by the act were limited to criteria by which those in the greatest need of civil legal aid were identified.
Further, the fact that the statutory instrument would be subject to greater scrutiny than if it had been introduced by the process of negative resolution was plainly relevant to consideration of whether the power conferred was wide enough. However, it was not enough to assert that the statutory instrument would be subject to scrutiny by parliament if, on a true construction of the statutory powers in their context, no power to introduce such a measure could be found.
Accordingly, the statutory instrument was ultra vires and unlawful. The act did not permit such a criterion to be introduced by secondary legislation. It extended the scope and purpose of the act and was, accordingly, outwith the power conferred by section 9 of the act as supplemented by section 41 of the act (see , , ,  of the judgment).
(2) The real question raised by the case was whether, once the UK had chosen to provide legal assistance in cases where it had been under no duty to do so, it might refuse such assistance to those who would otherwise qualify, save for the fact that they did not meet a residence test. It was beyond question that the introduction of such a test was discriminatory. The test was more likely to be satisfied by a UK national than a national of another member state.
Accordingly, the question remained whether that discrimination was lawful and the question resolved itself into whether the provision of legal assistance other than in fulfilment of a legal obligation was analogous to the payment of welfare benefits. When what was at stake was the protection which domestic law afforded to all who fell within its jurisdiction, the provision of legal assistance was far from analogous to the distribution of welfare benefits. Further, it was difficult to see how the rationale that legal assistance should be confined to those with a closer connection than non-residence could possibly be applied to those who were subject to the laws of a state and sought no more than its protection.
Furthermore, the mere saving of costs could not justify discrimination. Within the system provided in Schedule 1 to the act, the UK was not permitted to discriminate against non-residents on the grounds that to do so might save costs. Accordingly, a residence test could not be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which was applicable to all equally, provided that they were within its jurisdiction.
It was not necessary to choose between the many different ways in which the claimant sought to advance the same argument, whether it was equal treatment under the common law or a breach of article 14 of the Convention read with article 6 of the Convention.
Residence was not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance by virtue of Schedule 1 to the act (see , , , , , , ,  of the judgment).
R v Lord Chancellor, ex p Witham  2 All ER 779 applied; Ministry of Justice (formerly Department for Constitutional Affairs) v O'Brien (Council of Immigration Judges intervening)  2 All ER 1 considered.
Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup (instructed by Bindmans LLP) for the claimant; James Eadie QC, Patrick Goodall and David Lowe (instructed by the Treasury Solicitor) for the secretary of state; Paul Bowen QC, Eric Metcalfe and Catherine Meredith (instructed by Freshfields Bruckhaus Deringer LLP) for the intervener.