In the United Kingdom, The Public Law Project (PLP) has successfully challenged the legality of attempts by the Lord Chancellor to amend the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO Act), in order to introduce a residency requirement for applicants of civil legal aid.
The restrictions limit access to civil legal aid to those lawfully resident in the UK or overseas British territories either at the time of application, or for 12 consecutive months at any point in the past. The LAPSO Act provides specific exemption from this requirement for family members of those serving in the armed forces, asylum seekers and children under 12 months of age.
The measures were given force in 2013, following a public consultation, with the objective of bringing down the costs of legal aid and ensuring that “every aspect of expenditure” of taxpayer money on civil legal aid was justified.
Prior to its presentation before parliament, PLP sought a declaratory order that the draft was unlawful on the basis that it was outside of the powers conferred upon the Chancellor by the LASPO Act to introduce delegated legislation. Secondly, it was argued that the amendments were unjustifiably discriminatory. The Divisional Court agreed that the order was unlawful on both of these grounds.
However, this finding was reversed in the Court of Appeal. The Ministry of Justice successfully argued that the reforms fell within the remit of the Chancellor and also that any discrimination arising was just and proportionate, as the option of applying for exceptional funding still existed for persons excluded by the residency requirement.
The PLP appealed to the Supreme Court, where Lord Neuberger gave a single judgement on the 13th July. This judgement, with which all six other justices agreed, established that it was beyond the authority of the Chancellor to restrict persons from their right to access legal services on grounds of personal circumstances.
Looking to Section 9(2)(b) of the LASPO Act which conferred authority upon the Chancellor to “vary or omit” legal services, the Supreme Court considered that the wording, in its context, could not be interpreted so as to give scope for the introduction of legislation which would deny access to legal services on grounds of residency status. The Supreme Court found further support for this interpretation in Section 11 of the LAPSO Act. This section contains provisions surrounding the determination of eligibility for civil legal aid and sets out the personal characteristics or circumstances concerned with an individual’s need for legal services and the extent and likelihood of benefit from those services. Lord Neuberger held that the fact that no criterion under section 11 were based on personal characteristics unrelated to the financial circumstances of an applicant, or the legal services themselves, provided concrete support for the argument proffered by PLP, that the move to introduce a residency clause fell beyond the capacity of the legislation.
The Supreme Court also rejected a previous finding of the Court of Appeal that Section 41(2)(b) of the LAPSO Act, allowing for the making of “provision by reference to… services provided for a particular class of individual”, authorised the Lord Chancellor to introduce the residency restrictions under the provisions of Section 9. It was held that the section could not be construed as to permit exclusion of an entire class of persons from access to legal aid on the basis of their residency status under the act.
The judgement stated that the object of the LASPO Act was to “channel civil legal aid on the basis of the nature and importance of the issue, an individual’s need for financial support, the availability of other funding, and… other forms of dispute resolution”. Accordingly, the draft order’s exclusion of persons on grounds of residency requirements engaged an entirely separate class of criteria than that stipulated in the Act. On this ground, it was held unanimously to be unlawful on the basis that it was ultra vires.
It was therefore unnecessary to adjudicate on the second issue of whether any arising discrimination could be justified.
Read the full judgement here.
For previous PILA bulletin commentary on reforms to the civil legal aid in the UK click here.